Case C-454/00: 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
Date: 2001-02-24
Institutions: Court of Justice
Subjects: interpretation of the law, marketing, marketing standard, medicinal product

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.