Case C-122/03: Action brought on 19 March 2003 by the Commission of the European Communities against the French Republic
Date: 2003-05-10
Institutions: Court of Justice
Subjects: European Commission, France, action for failure to fulfil an obligation, exchange of information, import, marketing, medicinal product, pharmaceutical product

C 112/18

EN

Official Journal of the European Union

10.5.2003

The Commission of the European Communities claims that
the Court should:

Action brought on 19 March 2003 by the Commission of
the European Communities against the French Republic

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 2000/52/EC of 26 July 2000 on
the transparency of financial relations between Member
States and public undertakings as well as on financial
transparency within certain undertakings (1) or, in any
event, by failing to notify them to the Commission,
France has failed to fulfil
its obligations under that
directive;

— order France to pay the costs.

Pleas in law and main arguments

(Case C-122/03)

(2003/C 112/32)

An action against the French Republic was brought before the
Court of Justice of the European Communities on 19 March
2003 by the Commission of the European Communities,
represented by H. Støvlbæk and B. Stromsky, acting as Agents,
with an address for service in Luxembourg.

The period prescribed for transposition expired on 31 January
2001.

The applicant claims that the Court should:

( 1) OJ L 193 of 29 July 2002, p. 78.

Action brought on 18 March 2003 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-120/03)

(2003/C 112/31)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 18 March
2003 by the Commission of the European Communities,
represented by K. Banks and J.L. Buendía Sierra, acting as
Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directive 98/71/EC (1) of the European Parliament and of
the Council of 13 October 1998 on the legal protection
of designs or, in any event, by failing to communicate
them to the Commission, the Kingdom of Spain has
failed to fulfil its obligations under that directive;

2. Order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The period prescribed for implementation of the directive
expired on 28 October 2001.

( 1) OJEC L 289 of 28 October 1998, p. 28.

1. Declare that, by imposing, pursuant to Article R. 5142-
15 of the Public Health Code, on traders importing or
distributing in France medicinal products which are
already covered by a marketing authorisation for the
French or Community market the requirement that they
submit, at the request of the monitoring authorities,
either a certified copy issued by the French agency for
health products sanitary safety (FAHPSS) of the French
marketing authorisation or of the registration of the
medicinal product, or a document issued by the FAHPSS
attesting to the fact that the imported medicinal product
has obtained a marketing authorisation issued by the
European Community, the French Republic has failed to
fulfil its obligations under Article 28 of the EC Treaty;

2. Order the French Republic to pay the costs.

Pleas in law and main arguments

So far as concerns the importation into France of pharmaceuti-
cal products already covered by a marketing authorisation for
the French or Community market, Article R. 5142-15 of the
Public Health Code requires the submission at the request of
customs officers of either a certified copy of the marketing
authorisation or of the registration of the medicinal product
or a document attesting to the fact that the imported medicinal
product has obtained a marketing authorisation issued by the
European Community, each of those documents being issued
by the FAHPSS.

The effects of that provision on traders wishing to import and
distribute pharmaceutical products in France may be resumed
as follows: (i) formalities, costs and the time entailed by the
granting procedure are imposed on traders which they are
obliged to bear, on pain of sanctions, throughout its term; (ii)
those same traders are obliged to be constantly in possession
of documents which could be potentially numerous and
voluminous.

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.