Order — ECLI:EU:C:2003:368
Date: 2003-06-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures
Procedure: Action for annulment;Appeal;Application for interim measures - unfounded
Origin: France

Notice for the OJ Appeal brought on 4 April 2003 by the Commission of the European Communities against the judgment delivered on 28 January 2003 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in case T-147/00 between Les Laboratoires Servier and the Commission of the European Communities. (Case C-156/03 P) An appeal against the judgment delivered on 28 January 2003 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in case T-147/001 between Les Laboratoires Servier and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 4 April 2003 by the Commission of the European Communities, represented by R. Wainwright and H. Støvlbæk, acting as agents, with an address for service in Luxembourg. The Appellant claims that the Court should: -annul the judgment issued by the Court of First Instance of 28 January 2003 in case T-147/00, Servier; -order the defendants to pay the costs. Pleas in law and main arguments: (a) Fundamental misinterpretation of the division of powers. First, the appellant submits that it is clear from the assessment in the contested judgment that the Court of First Instance has fundamentally misinterpreted the division of powers between the Community and the Member States in relation to harmonisation as regards medicinal products for human use in general and to Chapter III of Directive 75/3192 in particular. The Court of First Instance takes the view, referring to the judgment in T-74/00, Artegodan and others, that Chapter III of Directive 75/319 provides both for "exclusive competence of the Member States" and for "exclusive competence of the Commission" and that it is therefore necessary to determine whether there has been a "[transfer of] competence from the Member States concerned to the Community". In taking this stance, the Court of First Instance fails to understand that the various provisions making up Chapter III of Directive 75/319, including Articles 12 and 15a, which are particularly at issue here, are all based on a system of powers shared between the Member States and the Community. Chapter III thus gives Member States the right to initiate certain procedures for granting, varying or withdrawing marketing authorisations, and lays on the Community, represented by the Commission, a duty to achieve harmonisation by way of decisions which the Member States are then required to implement. (b) Legal assessment based on a Commission decision which was not the subject of the dispute Still by way of a preliminary submission, the appellant would point out that the Commission decision (C(2000)573) of 9 March 2000 (the "2000 decision") which was the subject of the appeal at first instance, is based on Article 15a(1) of Directive 75/319. However, it must be noted that, rather than directly and specifically interpreting this legal basis, the Court of First Instance confines itself to examining Commission decision C(96)3608 final/1 of 9 December 1996 (the "1996 decision") and other provisions of Directive 75/319 in order to interpret Article 15a by pure deduction. The Court of First Instance's assessment in the contested judgment relates exclusively to the Commission decision of 1996, although this decision is manifestly not the instrument contested at first instance. It is clear that Article 12 of Directive 75/319, on which the 1996 decision is based, and which is examined by the Court of First Instance, is not the legal basis for the 2000 decision. Moreover, Article 12 is essentially assessed by way of a comparison with Article 10(2) of Directive 75/319, although the latter does not form the legal basis for the 2000 decision either, or of the 1996 decision, examined by the Court of First Instance. Thus, the Court of First Instance's conclusion that the Commission was not competent to adopt the 2000 decision is based on an assessment relating to a decision which was not contested at first instance and is founded essentially on provisions, namely Articles 10 and 12 of Directive 75/319, which do not form the legal basis for the 2000 decision. In the appellant's view, this assessment constitutes in itself a failure to define the status of Article 15a(1) of Directive 75/319 and thus a failure to take account of it. In the appellant's view, the two errors described above are fundamental and linked to the extent that they vitiate the entire legal assessment leading the Court of First Instance to deduce that the Commission was not competent to adopt the 2000 decision. Lastly, and solely in the alternative, the appellant maintains that the Court of First Instance's reasoning to the effect that Article 15a of Directive 75/319 does not cover marketing authorisations harmonised by way of the purely consultative procedure within the meaning of Articles 12 and 13 of the directive also constitutes a misinterpretation of that article. ____________ 1 - OJ C 247, 26.08.2000, p. 29. 2 - Second Council Directive 75/319/EEC of 20 May 1975 on the approximation of provisions laid down by Law, Regulation or Administrative Action relating to proprietary medicinal products (OJ L 147, 09.06.1975, p. 13).