Case C-42/03: Action brought on 4 February 2003 by the Commission of the European Communities against the Kingdom of Spain
Date: 2003-04-26
Institutions: Court of Justice
Subjects: Spain, action for failure to fulfil an obligation, catch quota, fishing controls, fishing regulations

26.4.2003

EN

Official Journal of the European Union

C 101/17

Reference for a preliminary ruling by the Bundesgerichts-
hofes by order of that Court of 17 December 2002 in the
appeal proceedings brought by Pharmacia & Upjohn S.p.A

it in the fishing years 1990, 1991, 1992, 1993,
1994, 1995, 1996 and 1997;

(Case C-31/03)

(2003/C 101/28)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesgerichtshofes
(Federal Court) of 17 December 2002, received at the Court
Registry on 27 January 2003, for a preliminary ruling in the
appeal proceedings brought by Pharmacia & Upjohn S.p.A on
the interpretation of Article 19(1) of Council Regulation (EEC)
No 1768/92 of 18 June 1992 concerning the creation of a
supplementary protection certificate for medicinal products
(OJ 1992 L 182, p. 1; hereinafter ‘the Protection Certificate
Regulation’):

Is the grant of a supplementary protection certificate in a
Member State of the Community on the basis of a medicinal
product for human beings authorised in that Member State
precluded by an authorisation to place the same product on
the market as a veterinary medicinal product granted in
another Member State of the Community before the date
specified in Article 19(1) of the Protection Certificate Regu-
lation, or is the sole determining factor the date on which the
product was authorised in the Community as a medicinal
product for human beings?

— by having failed to ensure compliance with the
Community rules on conservation through adequate
monitoring of
fishing activities and appropriate
inspections of the fishing fleet and of landings and
recording of catches for the fishing years 1990,
1991, 1992, 1993, 1994, 1995, 1996 and 1997;

— by not having temporarily prohibited fishing from
vessels flying the Spanish flag or registered in
Spanish territory when the quotas allocated to
Spain were deemed to be exhausted in the fishing
years 1990, 1991, 1992, 1993, 1994, 1995,
1996 and 1997 and by having finally prohibited it
when the quotas had already been exceeded; and

— by having failed to take legal or administrative action
against the master or other person responsible for
overfishing in the fishing years 1990, 1991, 1992,
1993, 1994, 1995, 1996 and 1997;

the Kingdom of Spain has failed to fulfil its obligations
under Article 5(2) of Regulation (EEC) No 170/83 (1),
Article 9(2) of Regulation (EEC) No 3760/92 (2), Article 1
and Article 11(1) and (2) of Regulation (EEC) No 2241/
87 (3) and Article 2, Article 21(1) and (2) and Article 31
of Regulation (EEC) No 2847/93 (4);

— order the Kingdom of Spain to pay the costs.

Action brought on 4 February 2003 by the Commission
of the European Communities against the Kingdom of
Spain

Pleas in law and main arguments

(Case C-42/03)

(2003/C 101/29)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 4 Febru-
ary 2003 by the Commission of the European Communities,
represented by T. van Rijn, Legal Adviser, and S. Pardo
Quintillán, of its Legal Service, with an address for service in
Luxembourg.

The applicant claims that the Court of Justice should:

— declare that:

— by having failed to determine the appropriate detail-
ed rules for the use of the fishing quotas allocated to

— Infringement of Article 5(2) of Regulation (EEC) No 170/
83, Article 9(2) of Regulation (EEC) No 3760/92: those
provisions impose a general obligation on Member
States to determine, in accordance with the applicable
Community law, detailed rules for the use of the fishing
quotas allocated to them. The data on overfishing which
are cited in the reasoned opinions sent to Spain give an
overall picture of how often over a period of time and
how significantly the quotas were exceeded (5). They show
that the Kingdom of Spain has failed to fulfil its obligation
in accordance with the applicable
to put
Community
effective
measures for utilisation of the fishing quotas allocated to
it for the fishing years 1990 to 1997.

appropriate

legislation,

in place,

and

— Infringement of Article 1(1) of Regulation (EEC) No 2241/
87 and Article 2 of Regulation (EEC) No 2847/93: proper
management of fishing quotas also calls for appropriate
supervision and monitoring to ensure that restrictions on

C 101/18

EN

Official Journal of the European Union

26.4.2003

fishing are actually complied with. The data on overfish-
ing mentioned above make it clear that the Spanish
authorities have not effectively implemented the control
measures necessary to protect against overfishing,
in
particular fishing in the absence of a quota, specifically
through adequate inspection of landings and recording
of catches and landings.

Reference for a preliminary ruling by the Epitropi Anta-
gonismou by order of that Court of 22 January 2003
in the case of Sinetairismos Farmakopion Aitolias &
Akarnanias — SIFAIT and Others against GLAXOWELL-
COME AEVE (subsequently called GLAXOSMITHKLINE
AEVE)

— Infringement of Article 11(2) of Regulation (EEC)
No 2241/87 and Article 21(2) of Regulation (EEC)
No 2847/93: Spain did not monitor thoroughly enough
the information that it received on catches and how they
evolved and therefore fishing of the stocks referred to in
the reasoned opinions relating to the fishing years
1990 and 1997 was prohibited too late once the relevant
quotas had already been exceeded.

Compliance with quotas is an absolute obligation, breach
of which is not dependent on any proof that other
Member States have suffered harm or that the conser-
vation objectives pursued have been jeopardised by
endangering the relevant stocks.

— Infringement of Article 1(2) of Regulation (EEC) No 2241/
87 and Article 31 of Regulation (EEC) No 2847/93:
the Spanish authorities did not supply appropriate or
persuasive data on any legal action taken against those
responsible for exceeding fishing quotas or for catches
made in the absence of a quota for cod and mackerel
stocks in 1991, cod in 1992, cod in 1994, Greenland
halibut and redfish in 1995 and ‘other species’ in 1996.

( 1) Council Regulation (EEC) No 170/83 of 25 January 1983
establishing a Community system for the conservation and
management of fishery resources (OJ L 24 of 27.1.1983, p. 1).
( 2) Council Regulation (EEC) No 3760/92 of 20 December 1992
establishing a Community system for fisheries and aquaculture
(OJ L 389 of 31.12.1992, p. 1).

( 3) Council Regulation (EEC) No 2241/87 of 23 July 1987 estab-
lishing certain control measures for fishing activities (OJ L 207 of
29.7.1987, p. 1).

( 4) Council Regulation (EEC) No 2847/93 of 12 October 1993
establishing a control system applicable to the common fisheries
policy (OJ L 261 of 20.10.1993, p. 1).

( 5) On the basis of the information officially provided by Spain: in
1990, overfishing totalling 1 186,6 tonnes; in 1991, overfishing
totalling 1 728 tonnes; in 1992, overfishing totalling 2 196 tonn-
es; in 1993, overfishing totalling 179 tonnes; in 1994, overfishing
totalling 378 tonnes; in 1995, overfishing totalling 3 209 tonnes
and 528 tonnes in the absence of a quota; in 1996, overfishing
totalling 39 tonnes and 23 tonnes in the absence of a quota; in
1997, overfishing amounting to 72 tonnes.

(Case C-53/03)

(2003/C 101/30)

Reference has been made to the Court of
Justice of the
European Communities by order of the Epitropi Antago-
nismou (Competition Commission) of 22 January 2003,
received at the Court Registry on 5 February 2003, for a
preliminary ruling in the case of Sinetairismos Farmakopion
Aitolias & Akarnanias — SIFAIT and Others against GLAXO-
WELLCOME AEVE (subsequently called GLAXOSMITHKLINE
AEVE) on the following questions:

1. Where the refusal of an undertaking holding a dominant
position to meet fully the orders sent to it by pharmaceuti-
cal wholesalers is due to its intention to limit their export
activity and, thereby, the harm caused to it by parallel
trade, does the refusal constitute per se an abuse within
the meaning of Article 82 EC? Is the answer to that
question affected by the fact that the parallel trade is
particularly profitable for the wholesalers because of the
different prices, resulting from State intervention, in the
Member States of the European Union, that is to say by
the fact that pure conditions of competition do not
prevail in the pharmaceuticals market, but a regime which
is governed to a large extent by State intervention? Is it
ultimately the duty of a national competition authority
to apply Community competition rules in the same way
to markets which function competitively and those in
which competition is distorted by State intervention?

2.

If the Court holds that limitation of parallel trade, for the
reasons set out above, does not constitute an abusive
practice in every case where it is engaged in by an
undertaking holding a dominant position, how is possible
abuse to be assessed? In particular:

2.1. Do the percentage by which normal domestic
consumption is exceeded and/or the loss suffered
by an undertaking holding a dominant position
compared with its total turnover and total profits
constitute appropriate criteria? If so, how are the
level of that percentage and the level of that loss
determined (the latter as a percentage of turnover
and total profits), above which the conduct
in
question may be abusive?