Case T-42/03: Action brought on 10 February 2003 by Lurgi AG and Lurgi S.p.A. against the Commission of the European Communities
Date: 2003-04-05
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), building industry, energy industry, termination of a contract

C 83/26

EN

Official Journal of the European Union

5.4.2003

The applicant claims that the Court should:

— annul the Contested Decision

— order the Commission to pay the applicants’ costs

Pleas in law and main arguments

The Applicants in the present case are all Marketing Authoris-
ation Holders (MAH)
for the product ZOCORD, which,
containing the active ingredient simvastatin, is a lipid-lowering
medicine reducing levels of toal cholesterol, LDL-C (low
density lipoprotein cholesterol), Apo B (Apolipoprotein B) and
triglycerides in the blood It also increases the amount of HDL-
C (High density lipoprotein cholesterol) in the blood.

They challenge the decision of the European Agency for the
Evaluation of Medicinal Products to initiate a referral procedure
under Article 30 of Directive 2001/83/EC of the European
Parliament and the Council, of 6 November 2001, of the
Community code relating to medicinal products for human
use (the Directive) (1),
in relation to the aforementioned
product.

The Applicants sumit that the contested Decision violates
Article 30 of the Directive on the following grounds:

— There are no divergent decisions following decisions in
accordance with Article 8, 10(1) and 11 of the Directive.

— The contested Decision is a decision to harmonise the
summary of product characteristics (SPC) for ZOCORD
and associated trade names, and the single proposal of
the referral procedure for ZOCORD is to develop and
impose the EU-wide harmonised SPC. The Article 30
procedure, however, does not allow for the adoption of a
harmonised SPC.

— Before the mutual recognition procedure took effect,
pharmaceutical companies were under no obligation to
submit identical marketing authorisation applications to
different Member States. Applicants could, for example,
request approval of different therapeutic uses or presen-
tations, often to take account of differences in national
medical practices and customs. Such differences in appli-
cations unavoidably result in differences in the approvals,
but do not qualify as ‘divergent decisions’ for the purposes
of Article 30. Hence, differences between national
approvals resulting from different applications are not
covered by Article 30.

— The referral covers the entire content of the SPC. This
goes beyond the permissible scope of an Article 30
referral, which must be limited to a ‘clearly identified
question’, according to Article 30, second indent, of the
Directive.

— It has not been demonstrated that the contested Decision

is based on public health grounds.

(1) OJ L 311, of 28.11.2001, p. 67.

Action brought on 10 February 2003 by Lurgi AG and
Lurgi S.p.A. against the Commission of the European
Communities

(Case T-42/03)

(2003/C 83/56)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 10 February 2003 by Lurgi AG,
Frankfurt am Main, Germany, and Lurgi S.p.A., Milan, Italy,
represented by Dr Michael Schütte and Prof Massimo Benedet-
teli, Lawyers with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the notice terminating the THERMIE Contract,
notified by the Commission’s letter of 26 November
2002;

— declare that the Commission is not entitled to claim
reimbursement of the funds paid to the contractors under
the THERMIE contract BM/1007/94;

— order the Commission to bear the costs of these proceed-

ings.

Pleas in law and main arguments

The applicants, together with several other contractors, con-
cluded a contract (THERMIE contract) on 12 December 1994
with the Commission for activities relating to the promotion
of energy technology in Europe. The contract was concluded
under number BM 1007/1994 IT/DE/UK and its object was
the funding and implementation of the project ‘Energy farm:
an IGCC plant for the production of electricity and heat trough
gasification of SFR biomass’

5.4.2003

EN

Official Journal of the European Union

C 83/27

On 30 May 1997 a contract was concluded between one of
the applicants, Lurgi SpA, and the coordinator of the project,
Bioelettrica, relating to the construction of a plant for the
atmospheric gasification of biomass. During the engineering
works, the applicant identified certain technical difficulties.
These difficulties were brought to the attention of the Com-
mission and the other contractors.

On 6 September 2001, the Commission notified Bioelettrica
that it was terminating the contract because of the failure to
commence the works under the THERMIE contract. Bioelettrica
contested this termination of the contract before the Court of
First Instance in Case T-287/01, Bioelettrica/Commission.

the Commission sent a further notice
On 23 July 2002,
indicating that it would terminate the contract due to non-
performance by the contractors unless they performed their
obligations within 30 days. The Commission mainly criticised
the delays of the project. In a letter dated 26 November
2002, the Commission stated that it considered the contract
terminated. This termination of the contract is being contested
in the present case.

In support of their application, the applicants invoke an
infringement of the formal requirements in the decision
making procedure of
the Commission. According to the
applicants, all acts of the Commission have to be taken under
the principle of collegiality as set forth in Article 219 of the
EC Treaty and Article 1 of
the procedural rules of the
Commission (1). The applicants submit that the decision termi-
nating the contract had a substantial
impact for
the contractors and involves a difficult technical and legal
assessment of the contract and its purpose. Therefore, the
applicants claim that the decision to terminate the contract
could not be considered as an execution of an act at an
administrative or management level and that the decision had
to be taken by the College of Commissioners.

financial

Furthermore, the applicants invoke the wrongful application
of the THERMIE contract. The applicants submit in this respect
that there is no justification for a termination of the contract
for non-performance by the contractors. According to the
applicants, this provision is not applicable when there are
reasonable technical or economic grounds for non-perform-
ance. In the present case, there was a need to make modifi-
cations to the original technology causing serious economic
risks.

the applicants submit

that the behaviour of the
Finally,
Commission prevents the Commission from invoking non-
performance as a ground for termination of the contract. In
this respect, the applicants invoke Article 1460 of the Italian
Civil Code and the principle inadimplenti non est adim-
plentum.

Action brought on 11 February 2003 by Leali S.p.A.
against Commission of the European Communities

(Case T-46/03)

(2003/C 83/57)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 11 February 2003 by Leali S.p.A.,
represented by Giovanni Vezzoli and Gianluca Belotti, lawyers.

The applicant claims that the Court should:

— principally, annul the contested decision;

— or, alternatively, reduce the fine imposed,

— order the defendant to pay the costs.

Pleas in law and main arguments

This action is directed against the same decision as that
contested in Case T-27/03 S.P. v Commission. The pleas
in law and main arguments are similar to those in the
abovementioned case.

Removal from the register of Case T-187/94 (1)

(2003/C 83/58)

(Language of the Case: German)

By order of 11 December 2002 the President of the First
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case
T-187/94: Theresia Rudolf v Council of the European Union
and Commission of the European Communities.

( 1) Rules of Procedure of the Commission [C(2000) 3614] (OJ L 308

of 8 December 2000, p. 26).

(1) OJ C 174 of 25.6.1994.