Case C-93/01 P: Appeal brought on 26 February 2001 by the French Republic against the judgment delivered on 14 December 2000 by the Fourth Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-613/97 between Union Française de l'Express (UFEX), DHL International, Federal Express International (France), CRIE and the Commission of the European Communities, supported by the French Republic, Chronopost SA and La Poste
Date: 2001-05-19
Institutions: Court of Justice
Subjects: France, General Court (EU), State aid, action for annulment (EU), postal service, transport company

19.5.2001

EN

Official Journal of the European Communities

C 150/11

Pleas in law and main arguments

— Breach of the principle of Community law relating to the
concept of set-off between claims: the distinction drawn
by the Court of First Instance between ‘actual payment’
and payment by means of set-off does not exist in law,
since those two methods of payment have the same legal
and accounting consequences.

the Communities’

— Breach of the principle of the effectiveness of Community
law: the Court of First Instance was wrong in concentrat-
ing on the proper carrying out of the activities relating to
the payments made by means of set-off without dwelling
on the need to protect
financial
interests. The Court of First Instance did not explain,
moreover, why set-off is more damaging, in respect of
the carrying out of the activities at issue, than enforced
recovery. By stating that the non-payment of the sums
intended for the activities at issue jeopardised the carrying
out of those activities, the Court of First Instance distorted
the facts or failed, at least, to state the reasons for its
observations whereas, indeed, it stated that the CEMR
was not insolvent.

— Breach of the principles of sound financial management
and the sound administration of justice: the Court of First
Instance failed to take account of the main purpose of
set-off, which is economy of procedure and the saving of
costs, not only in the context of mutual
financial
obligations, but also in the context of the sound adminis-
tration of justice.

Appeal brought on 26 February 2001 by the French
Republic against the judgment delivered on 14 December
2000 by the Fourth Chamber (Extended Composition) of
the Court of First Instance of the European Communities
in Case T-613/97 between Union Française de l’Express
(UFEX), DHL International, Federal Express International
(France), CRIE and the Commission of the European
Communities, supported by the French Republic, Chrono-
post SA and La Poste

(Case C-93/01 P)

(2001/C 150/21)

An appeal against the judgment delivered on 14 December
2000 by the Fourth Chamber (Extended Composition) of the
Court of First Instance of the European Communities in Case
T-613/97 between Union Française de l’Express (UFEX), DHL
International, Federal Express International (France), CRIE and
the Commission of the European Communities, supported by
the French Republic, Chronopost SA and La Poste, was brought
before the Court of Justice of the European Communities on
26 February 2001 by the French Republic, represented by
G. de Bergues and F. Million, acting as Agents, with an address
for service in Luxembourg.

The appellant claims that the Court should:

— set aside the judgment of the Court of First Instance;

Reference for a preliminary ruling by the Monomeles
Dioikitiko Protodikeio Irakliou (Second Chamber) by
judgment of that court of 31 October 2000 in the case of
G. Stilianakis against the Greek State

— order the UFEX to pay the costs incurred in the proceed-
ings before the Court of Justice and make a fresh ruling
in relation to the costs incurred in the proceedings before
the Court of First Instance.

(Case C-92/01)

(2001/C 150/20)

Reference has been made to the Court of Justice of the
European Communities by judgment of the Monomeles Dioiki-
tiko Protodikeio Irakliou (Administrative Court of First
Instance, Heraklion), Second Chamber, of 31 October 2000,
received at the Court Registry on 22 February 2001, for a
preliminary ruling in the case of G. Stilianakis against the
Greek State on the following question:

Are Articles 8a and 59 of the EC Treaty and Article 3(1) of
Council Regulation No 2408/92 (1)
to be interpreted as
prohibiting a Member State from imposing a differentiated
fiscal charge on domestic and intra-Community flights with
the direct result that an amount of tax is charged on intra-
Community flights double that on flights within the Member
State?

(1) OJ L 240 of 24.8.1992, p. 8.

Pleas and main arguments

— Misinterpretation of

‘normal market conditions’: The
Court of First Instance erred in holding that when the
Commission carried out an analysis of the economic
factors on the basis of which it was considered possible
to assess whether remuneration was ‘normal’, it should
have taken into account the implications for La Poste’s
costs — hence on the remuneration requested from its
subsidiary — of
its structural situation (its reserved
sector).

The approach espoused by the Court of First Instance has
no basis in reality, since a private operator with no
reserved activities would never wish to equip itself with a
network like the La Poste network, which was developed
solely to meet the needs of the reserved sector. Moreover,
no private operator desires access to the La Poste network,
despite the allegedly cheaper rates offered.

C 150/12

EN

Official Journal of the European Communities

19.5.2001

— Infringement of Article 92 of

the EC Treaty (now
Article 87 EC): The Court of First Instance failed to take
into consideration the legal context: La Poste is required
to offer any of Chronopost’s competitors who so requests
access to its network on similar terms, which clearly
indicates that the relationship between La Poste and
Chronopost does not entail a selective advantage for the
benefit of Chronopost.

— Breach of the obligation to state reasons: The Court of
First
Instance ought properly to have explained the
reasoning which led it to conclude — solely because of
the existence of a reserved sector — that La Poste’s
manner of taking into account its full costs was unsatisfac-
tory.

(2)

if so, is the Member State of nationality entitled to refuse:

a)

to revoke any preliminary obstacle to the entry of
the non-national spouse into that Member State (on
the facts of this case an outstanding deportation
order); and

b)

to accord the non-national spouse a right of entry
into its territory?

Reference for a preliminary ruling by the Immigration
Appeal Tribunal (United Kingdom), by order of that court
of 3 October 2000, in the case of Secretary of State for
the Home Department against Hacene Akrich

(Case C-109/01)

(2001/C 150/22)

Reference has been made to the Court of Justice of the
European Communities by an order of the Immigration Appeal
Tribunal (United Kingdom) of 3 October 2000, which was
received at the Court Registry on 7 March 2001,
for a
preliminary ruling in the case of Secretary of State for the
Home Department against Hacene Akrich, on the following
question:

Where a national of a Member State is married to a third
country national who does not qualify under national legis-
lation to enter or reside in that Member State, and moves to
another Member State with the non-national spouse, intending
to exercise Community law rights by working there for only a
limited period of time in order thereafter to claim the benefit
of Community law rights when returning to the Member State
of nationality together with the non-national spouse:

(1)

is the Member State of nationality entitled to regard the
intention of the couple, when moving to the other
Member State, to claim the benefit of Community law
rights when returning to the Member State of nationality,
notwithstanding the non-national spouse’s lack of qualifi-
cation under national legislation, as a reliance on Com-
munity law in order to evade the application of national
legislation; and

Reference for a preliminary ruling from the Högsta
Förvaltningsdomstolen (Finnish Supreme Administrative
Court) — by decision of that court of 8 March 2001 in
the case of Paranova Oy, Esbo, v Läkemedelsverket
(Medical Products Agency)

(Case C-113/01)

(2001/C 150/23)

Reference has been made to the Court of Justice of the
European Communities by a decision of the Högsta För-
valtningsdomstolen of 8 March 2001, which was received at
the Court Registry on 14 March 2001, for a preliminary ruling
in the case of Paranova Oy, Esbo, v Läkemedelsverket on the
following questions:

1.

2.

imported as a parallel

Is it compatible with Articles 28 and 30 EC for a national
agency to decide that a marketing authorisation for
import
a medicinal product
automatically comes to an end if the original marketing
authorisation for the medicinal product has been with-
drawn at the holder’s request for reasons unconnected
with the effectiveness or the safety of the medicinal
product and despite the fact that the product has a valid
marketing authorisation in the Member State from which
the parallel imports come?

If Community law imposes restrictions or conditions on
the right of a national agency to decide that a marketing
authorisation for parallel imports comes to an end in the
situation referred to in Question 1, what importance
should be accorded to the facts that

a)

the holder of the original marketing authorisation
has obtained a new marketing authorisation for a
medicinal product designed to replace the original
medicinal product but that new product is not in
the same pharmaceutical form (tablets instead of
capsules) and the active ingredient is not exactly the
same (magnesium Omeprazole instead of Omepra-
zole); on the other hand, the national agency con-
siders that the medicinal products are bioequivalent
and that they have the same therapeutic effect;