Case C-463/00: Action brought on 21 December 2000 by the Commission of the European Communities against the Kingdom of Spain
Date: 2001-02-24
Institutions: Court of Justice
Subjects: European Commission, Spain, appeal to an administrative authority, free movement of capital, supervisory power, undisclosed partnership

24.2.2001

EN

Official Journal of the European Communities

C 61/3

Under Community law, in particular under the principle of
Community solidarity contained in Article 10 EC, and in the
circumstances described in the grounds of this decision (1), is
an administrative body required to reopen a decision which
has become final in order to ensure the full operation of
Community law, as it is to be interpreted in the light of a
subsequent preliminary ruling?

(1) In this case the appellant exhausted the legal remedies available to
(although the College did not seek a preliminary ruling under (the
the time) and the College gave an
present) Article 234 at
interpretation of European law on a specific point which proved
subsequently to differ from the Court’s interpretation in a later
judgment.

Reference for a preliminary ruling by the Corte d’Appello
di Milano by order of that court of 25 October 2000 in
the case of VIS Farmaceutici — Istituto Scientifico delle
Venezie SpA against Duphar International Research BV,
and Consorzio Produttori Principi Attivi Generici —
CPA, intervener

(Case C-454/00)

(2001/C 61/06)

Reference has been made to the Court of Justice of the
European Communities by order of the Corte d’Appello di
Milano (Court of Appeal, Milan) of 25 October 2000, which
was received at the Court Registry on 13 December 2000, for
a preliminary ruling in the case of VIS Farmaceutici — Istituto
Scientifico delle Venezie SpA, having its registered office in
Padua, Italy, against Duphar International Research BV, having
its registered office in the Netherlands, and Consorzio Produt-
tori Principi Attivi Generici — CPA,
intervener, on the
following question:

Must Article 4 of Regulation No 1768/92 (1) be interpreted as
meaning that the scope of protection of the supplementary
certificate extends only to manufacture of the raw material
from which is prepared the product which constitutes the
medicinal product covered by the marketing authorisation?

(1) Council Regulation (EEC) No 1768/of 18 June 1992 concerning
the creation of a supplementary protection certificate for med-
icinal products (OJ L 182, 2.7.1992, p. 1).

Action brought on 21 December 2000 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-463/00)

(2001/C 61/07)

An action against the Kingdom of Spain was brought before the
Court of Justice of the European Communities on 21 December
2000 by the Commission of the European Communities,
represented by Maria Patakia and Manuel Desantes, with an
address for service in Luxembourg at the office of Carlos
Go´ mez de la Cruz, Wagner Centre, Kirchberg.

The applicant claims that the Court should:

1. Declare that Article 2 and Article 3(1) and (2), together
with Article 1, of Law 5/1995 (1), and the implementing
decrees enacted under Article 4 thereof (Royal Decrees
No 3/1996 of 15 January 1996 concerning Repsol, No
8/1997 of 10 January 1997 concerning Telefo´ nica de
Espan˜ a, No 40/1998 of 16 January 1998 concerning
Argentaria, No 562/1998 of 2 April 1998 concerning
Tabacalera and No 929/1998 of 14 May 1998 concerning
Endesa), in so far as they implement a system of prior
administrative authorisation

— which is not justified by overriding public interest

requirements,

— without laying down objective criteria which are

consistent and have been made public, and

— without complying with the principle of pro-

portionality,

are incompatible with Article 43 EC (ex Article 52) and
Article 56 EC (ex Article 73b).

2. Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The abovementioned provisions of Law 5/1995 and its
implementing decrees enable the Spanish authorities to subject
to prior administrative authorisation certain decisions (liqui-
dation, hiving off, merger, change of the company’s object,
sale of assets and sale of more than 10 % of the shares) (Article
3) taken by certain categories of companies in which the
State’s shareholding is in excess of 25 % of the share capital
and thereby results in it effectively controlling the company
(Article 1), provided that such decisions lead either to the
State’s shareholding being reduced by at least 10 % of the
capital so that
its holding is less than 50 %, or to its
shareholding being reduced by at least 15 % of the capital by
any means (Article 2). Those facts have not at any time been
disputed by the Spanish Government.

C 61/4

EN

Official Journal of the European Communities

24.2.2001

The Commission submits that:

Question 2

— the possibility of making certain operations subject to
prior administrative authorisation, in the circumstances
described in the articles cited, constitutes a restriction
on the free movement of capital and the freedom of
establishment, which are provided for in Article 56 EC
(ex Article 73b) and Article 43 EC (ex Article 52);

— the system of administrative authorisation laid down by
Law 5/1995 can in no way be justified by overriding
reasons of public interest and clearly involves the exercise
of discretion. That discretionary power is a key factor
conducive to a negative assessment as regards the require-
ment of proportionality and to the conclusion that what
is involved is a system allowing indirect discrimination.

(1) Law 5/1995 of 23 March 1995 on the rules applying to the sale
of public shareholdings in certain companies (Boletı´n Oficial del
Estado No 72 of 25 March 1995).

Reference for a preliminary ruling by the Immigration
Appellate Authority (United Kingdom), by order of that
court of 19 December 2000, in the case of Arben Kaba
against Secretary of State for the Home Department

(Case C-466/00)

(2001/C 61/08)

Reference has been made to the Court of Justice of the
European Communities by an order of
the Immigration
Appellate Authority (United Kingdom) of 19 December 2000,
which was received at the Court Registry on 27 December
2000, for a preliminary ruling in the case of Arben Kaba
against Secretary of State for the Home Department, on the
following questions:

Question 1

1. What mechanisms are there for the referring court or the
parties to the proceedings (before the referring court and
the ECJ) to ensure that the totality of the proceedings
comply with the obligations under Article 6 ECHR and
therefore to ensure that no liability for breach of Article
6 ECHR arises either under the domestic human rights
statute or before the Court of Human Rights? and

2. Was the procedure followed in this case in compliance
with the requirements of Article 6 ECHR and, if not, how
does this affect the validity of the first judgment (1)?

1.

The Immigration Adjudicator having found that
the
Appellant, and the spouse of a person present and settled
in the United Kingdom were (or would be) afforded
different treatment in that

a)

b)

the Appellant, having entered the United Kingdom
as the spouse of an EU citizen exercising free
movement rights, was required to have been in the
United Kingdom for four years before he could
apply for indefinite leave to remain, whereas

the spouse of a person who was present and settled
in the United Kingdom (whether a British national
or as a person who had been granted indefinite leave
to remain) would qualify after one year for indefinite
leave to remain.

2. No evidence (or argument) concerning justification of the
differential treatment between the applicant and such a
spouse of a person present and settled having been
presented to the referring court either at the hearing
leading up to the Order for Reference of 25 September
1998, in the written or oral observations made by the
Respondent before the European Court of Justice or the
hearing leading up to the present Order for Reference,
despite the request by the Adjudicator for full argument,
the Immigration Adjudicator asks

1. Whatever the answer to the first question set out
above, is the Court’s judgment of 11 April 2000 in
this case (Case-356/98) to be interpreted as stating
that,
in these circumstances, there was discrimi-
nation contrary to Article 39 EC and/or Article 7(2)
of Regulations 1612/68 (2)?

2. After re-assessment of the facts, is there discrimi-
nation contrary to Article 39 EC and/or Article 7(2)
of Regulations 1612/68?

(1) Judgment of the Court of 11 April 2000 in Case C-356/98, Arben
Kaba against Secretary of State for the Home Department (ECR
p. I-2623).

(2) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
on freedom of movement for workers within the Community (OJ
L 257, 19.10.1968, p. 2 [SE SER1 68(H) p. 475]).