Case C-53/03: Reference for a preliminary ruling by the Epitropi Antagonismou by order of that Court of 22 January 2003 in the case of Sinetairismos Farmakopion Aitolias & Akarnanias — SIFAIT and Others against GLAXOWELLCOME AEVE (subsequently called GLAXOSMITHKLINE AEVE)
Date: 2003-04-26
Institutions: Court of Justice
Subjects: State aid, competition law, dominant position, export, interpretation of the law, pharmaceutical product, wholesale trade

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?

26.4.2003

EN

Official Journal of the European Union

C 101/19

2.2. Is an approach entailing the balancing of interests
appropriate, and, if so, what are the interests to be
compared? In particular:

Action brought on 14 February 2003 by the Commission
the United
of

the European Communities against
Kingdom of Great Britain and Northern Ireland

(a)

(b)

is the answer affected by the fact that the
ultimate
limited
consumer/patient derives
financial advantage from the parallel trade and

is account to be taken, and to what extent, of
the interests of social
insurance bodies in
cheaper medicinal products?

2.3. What other criteria and approaches are considered

appropriate in the present case?

Action brought on 14 February 2003 by the Commission
the United
of

the European Communities against
Kingdom of Great Britain and Northern Ireland

(Case C-61/03)

(2003/C 101/31)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 14 February 2003 by the
Commission of the European Communities, represented by
L. Ström and X. Lewis, acting as agents, with an address for
service in Luxembourg.

The Applicant claims that the Court should:

— declare that the United Kingdom of Great Britain and
Northern Ireland has failed to fulfil its obligations under
Article 37 of the Euratom Treaty by failing to provide the
Commission with general data relating to any plan for
the disposal of radioactive waste in whatever form
resulting from the decommissioning operations of the
JASON reactor; and

— order the United Kingdom of Great Britain and Northern

Ireland to pay the costs.

Pleas in law and main arguments

The Commission is of the opinion that the United Kingdom
has failed to fulfil
its obligations under Article 37 of the
Euratom Treaty to provide the Commission with general data
relating to any plan for the disposal of radioactive waste in
whatever form resulting from the decommissioning operations
of the JASON reactor, thus making it
impossible for the
Commission to determine whether the implementation of
such a plan is liable to result in the radioactive contamination
of the water, soil or airspace of another Member State.

(Case C-62/03)

(2003/C 101/32)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice of
the European Communities on 14 February 2003 by the
Commission of the European Communities, represented by
X. Lewis and M. Konstantinidis, acting as agents, with an
address for service in Luxembourg.

The Applicant claims that the Court should:

1)

declare that, by failing to adopt all the measures necessary
to comply with its obligations under Articles 1(a), 1(e),
1(f), 2(1)(b), 3, 4, 5, 7, 8, 12, 13 and 14 of Council
Directive 75/442/EEC of 15 July 1975 on waste (1), as
amended by Council Directive 91/156/EEC of 18 March
1991 (2), the United Kingdom of Great Britain and
Northern Ireland has failed to fulfil its obligations under
the Directive and under the Treaty establishing the
European Community;

2)

order the United Kingdom of Great Britain and Northern
Ireland to pay the costs.

Pleas in law and main arguments

Directive 91/156/EEC required Member States to bring into
force such laws, regulations and administrative provisions as
are necessary to comply with that directive no later than
1 April 1993, and to inform the Commission forthwith.
Article 2(2) thereof provides that Member States shall commu-
nicate to the Commission the texts of the main provisions of
national
law that they adopt in the field governed by the
directive.

As a result of an assessment of the national
legislation
communicated as transposing the directive the Commission
found a number of inconsistencies and gaps in the United
Kingdom’s transposition and concludes that Articles 1(a), 1(e),
1(f), 2(1)(b), 3, 4, 5, 7, 8, 12, 13 and 14 of the directive have
not been correctly transposed into the United Kingdom
legislation.

(1) OJ L 194, 25.7.1975, p. 39.
(2) OJ L 78, 26.3.1991, p. 32.