Case C-123/03 P: Appeal brought on 19 March 2003 by the Commission of the European Communities against the order made on 7 January 2003 by the Second Chamber of the Court of First Instance of the European Communities in case T-135/02 between Greencore Group plc and the Commission of the European Communities
Date: 2003-05-10
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), action for annulment (EU), fine, interest, redemption, sugar industry

10.5.2003

EN

Official Journal of the European Union

C 112/19

of

the Commission is

Accordingly,
view that
Article R. 5142-15 of the French Public Health Code is such
as to hinder, directly and indirectly, actually or potentially,
intra-Community trade and that it therefore amounts to a
measure of an effect equivalent to a quantitative restriction,
prohibited by Article 28 of the EC Treaty.

the

The French legislation is discriminatory and can therefore be
justified only on grounds of public interest as provided for in
Article 30 of the EC Treaty.

However, even leaving aside its discriminatory character,
it
must be pointed out that the measure in issue is unjustifiable.
In the internal market, the mere fact that a Community
product originates abroad cannot give rise to a suspicion that
it is non-compliant.

Even supposing that that measure could have been prompted
by the objective of protecting human health and life, the
objective of verifying whether a marketing authorisation has
been granted could be attained as effectively by a system which
is less of an obstacle to intra-Community trade, for example
by a system based on the checking of the number of the
marketing authorisation appearing on the external packaging
of the medicinal product.

Appeal brought on 19 March 2003 by the Commission of
the European Communities against the order made on
7 January 2003 by the Second Chamber of the Court of
First Instance of the European Communities in case T-135/
02 (1) between Greencore Group plc and the Commission
of the European Communities

(Case C-123/03 P)

(2003/C 112/33)

An appeal against the order made on 7 January 2003 by the
Second Chamber of the Court of First Instance of the European
Communities in case T-135/02 between Greencore Group plc
and the Commission of the European Communities, was
brought before the Court of Justice of the European Communi-
ties on 19 March 2003 by the Commission of the European
Communities, represented by K. Wiedner, acting as agent, with
an address for service in Luxembourg.

The Appellant claims that the Court should:

Pleas in law and main arguments

In August 1997 Irish Sugar complied with the Commission
decision 97/624/EC of 14 May 1997 and paid the fine imposed
on it. The Court of First Instance subsequently reduced the fine
by judgment of 7 October 1999. When submitting details
about its bank account so that the part of the fine unduly
levied could be reimbursed, Greencore (Irish Sugar’s mother
company) also asked for confirmation that interest would be
paid. On 4 January 2000 the Commission reimbursed the
principal amount without interest thus, in the Commission’s
view, refusing to grant the request concerning interest.

Greencore did not react until after the judgment in case T-171/
99 ‘Corus’ of 10 October 2001, in which the Court of First
Instance stated that the Commission would have to pay interest
on a fine unduly levied. On 1 November 2001, almost two
years after reimbursement of the part of the fine unduly levied,
Greencore, referring to the ‘Corus’ judgment, requested the
payment of interest on the amount of the fine reimbursed. By
letter of 11 February 2002 the Accounting Officer of the
Commission informed Greencore that, when it requested the
payment of interest on the amount of the fine unduly levied
on 27 October 1999, the Commission only reimbursed the
principal sum and had, therefore, already refused to pay
interest at that date.

Before the Court of First Instance the Commission raised an
objection of inadmissibility arguing that the letter of 11 Febru-
ary 2002 had not in any way changed the applicant’s legal
position. The Commission submitted that the letter merely
informed the applicant
it had failed to attack the
Commission decision of 4 January 2000 not to grant interest
and was therefore precluded from attacking that decision
now, taking advantage of a judgment obtained by another
undertaking in a separate Court procedure.

that

The Commission submits that the Court of First Instance
committed an error in law in rejecting the objection of
inadmissibility. In the Commission’s view the Court of First
Instance infringed Article 230 EC by declaring admissible an
action for annulment against an act that is not challengeable,
since it does not bring about a distinct change in the applicant’s
legal position. According to the Commission the letter of
11 February is a simple information telling the applicant that
it should have attacked the decision of 4 January 2000 refusing
interest. It does not alter the applicant’s position in any way,
since the Commission does not consider or re-consider the
applicant’s right to receive payment of interest. There are,
furthermore, no substantial new facts which should have
prompted the Commission to re-examine its initial position.

— annul the order of 7 January and declare the application

inadmissible;

(1) OJ C 169, 13.07.2002, p. 38.

— order the applicant to bear the costs incurred before the
Court of First Instance as well as the Court of Justice.