Case C-156/03 P: Appeal brought on 4 April 2003 by the Commission of the European Communities against the judgment delivered on 28 January 2003 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in case T-147/00 between Les Laboratoires Servier and the Commission of the European Communities
Date: 2003-06-21
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), action for annulment (EU), drug surveillance, marketing

21.6.2003

EN

Official Journal of the European Union

C 146/29

The Applicant claims that the Court should:

The Appellant claims that the Court should:

1.

declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Council Directive 1999/36/EC of 29 April 1999 on
transportable pressure equipment (1) and Commission
Directive 2001/2/EC of 4 January 2001 adapting the
latter directive to technical progress (2), or in any event
by failing to notify those provisions to it, Ireland has
failed to fulfil its obligations under the Directives;

2.

order Ireland to pay the costs of this action.

— annul the judgment issued by the Court of First Instance

of 28 January 2003 in case T-147/00, Servier;

— order the defendants to pay the costs.

Pleas in law and main arguments

a)

Fundamental misinterpretation of the division of powers

Pleas in law and main arguments

Article 249 EC, under which a directive shall be binding, as to
the result to be achieved, upon each Member State, carries by
implication an obligation on the Member States to observe the
period for compliance laid down in the directive. That period
expired on 1 December 2000 and 1 July 2001 respectively
without Ireland having enacted the provisions necessary to
comply with the directives referred to in the conclusions of
the Commission.

( 1) OJ L 138, 1.6.1999, p. 20.
( 2) OJ L 5, 10.1.2001, p. 4.

Appeal brought on 4 April 2003 by the Commission of the
European Communities against the judgment delivered on
28 January 2003 by the Second Chamber (Extended
Composition) of
the
European Communities in case T-147/00 between Les
Laboratoires Servier and the Commission of the European
Communities

the Court of First Instance of

First, the appellant submits that it
is clear from the
assessment in the contested judgment that the Court
of First Instance has fundamentally misinterpreted the
division of powers between the Community and the
Member States in relation to harmonisation as regards
medicinal products for human use in general and to
Chapter III of Directive 75/319 (2) in particular.

The Court of First Instance takes the view, referring to
the judgment in T-74/00, Artegodan and others, that
Chapter III of Directive 75/319 provides both for ‘exclus-
ive competence of the Member States’ and for ‘exclusive
competence of the Commission’ and that it is therefore
necessary to determine whether there has been a ‘[transfer
of] competence from the Member States concerned to
the Community’.

In taking this stance, the Court of First Instance fails
to understand that the various provisions making up
Chapter III of Directive 75/319, including Articles 12 and
15a, which are particularly at issue here, are all based on
a system of powers shared between the Member States
and the Community. Chapter III thus gives Member States
the right to initiate certain procedures for granting,
varying or withdrawing marketing authorisations, and
lays on the Community, represented by the Commission,
a duty to achieve harmonisation by way of decisions
which the Member States are then required to implement.

(Case C-156/03 P)

(2003/C 146/49)

b)

Legal assessment based on a Commission decision which
was not the subject of the dispute

An appeal against the judgment delivered on 28 January 2003
by the Second Chamber (Extended Composition) of the Court
of First Instance of the European Communities in case T-147/
00 (1) between Les Laboratoires Servier and the Commission
of the European Communities, was brought before the Court
of Justice of the European Communities on 4 April 2003 by
the Commission of the European Communities, represented
by R. Wainwright and H. Støvlbæk, acting as agents, with an
address for service in Luxembourg.

that

Still by way of a preliminary submission, the appellant
would point out
the Commission decision
(C(2000)573) of 9 March 2000 (the ‘2000 decision’)
which was the subject of the appeal at first instance, is
based on Article 15a(1) of Directive 75/319. However, it
must be noted that, rather than directly and specifically
interpreting this legal basis, the Court of First Instance
confines
to examining Commission decision
C(96)3608 final/1 of 9 December 1996 (the ‘1996
decision’) and other provisions of Directive 75/319 in
order to interpret Article 15a by pure deduction.

itself

C 146/30

EN

Official Journal of the European Union

21.6.2003

The Court of First Instance’s assessment in the contested
judgment relates exclusively to the Commission decision
of 1996, although this decision is manifestly not the
instrument contested at first instance.

It is clear that Article 12 of Directive 75/319, on which
the 1996 decision is based, and which is examined by the
Court of First Instance, is not the legal basis for the 2000
decision.

Moreover, Article 12 is essentially assessed by way of a
comparison with Article 10(2) of Directive 75/319,
although the latter does not form the legal basis for the
2000 decision either, or of the 1996 decision, examined
by the Court of First Instance.

Thus, the Court of First Instance’s conclusion that the
the 2000
Commission was not competent to adopt
decision is based on an assessment relating to a decision
which was not contested at first instance and is founded
essentially on provisions, namely Articles 10 and 12 of
Directive 75/319, which do not form the legal basis for
the 2000 decision. In the appellant’s view, this assessment
constitutes in itself a failure to define the status of
Article 15a(1) of Directive 75/319 and thus a failure to
take account of it.

In the appellant’s view, the two errors described above
are fundamental and linked to the extent that they vitiate
the entire legal assessment leading the Court of First
Instance to deduce that the Commission was not com-
petent to adopt the 2000 decision.

Lastly, and solely in the alternative, the appellant main-
tains that the Court of First Instance’s reasoning to the
effect that Article 15a of Directive 75/319 does not cover
marketing authorisations harmonised by way of the
purely consultative procedure within the meaning of
Articles 12 and 13 of the directive also constitutes a
misinterpretation of that article.

( 1) OJ C 247, 26.8.2000, p. 29.
( 2) Second Council Directive 75/319/EEC of 20 May 1975 on the
approximation of provisions laid down by Law, Regulation or
Administrative Action relating to proprietary medicinal products
(OJ L 147, 9.6.1975, p. 13).

Action brought on 8 April 2003 by Kingdom of Spain
against Eurojust

(Case C-160/03)

(2003/C 146/50)

The applicant claims that the Court should:

1.

annul, in the following calls for applications:

— call

for applications for the position of Data-
protection officer. Ref.: 03/EJ/07 (2003/C 34 A/01)
OJ C 34 A of 13.2.2003;

— call for applications for the position of Legal officer.
Ref.: 03/EJ/11 (2003/C 34 A/05) OJ C 34 A of
13.2.2003;

— call for applications for the position of Press officer.
Ref.: 03/EJ/13 (2003/C 34 A/07) OJ C 34 A of
13.2.2003;

— call for applications for the position of Secretary to
the General Administration. Ref.: 03/EJ/14 (2003/
C 34 A/08) OJ C 34 A of 13.2.2003;

— call for applications for the position of Librarian/
Archivist. Ref.: 03/EJ/12 (2003/C 34 A/06) OJ C 34
A of 13.2.2003;

— call for applications for the position of Accounting
officer. Ref.: 03/EJ/08 (2003/C 34 A/02) OJ C 34 A
of 13.2.2003;

— call for applications for the position of IT-informat-
ics expert (webmaster) of the European judicial
network. Ref.: 03/EJ/09 (2003/C 34 A/03) OJ C 34 A
of 13.2.2003,

the paragraph referring to the documents to be submitted
in English by applicants submitting their application in
another language; and the paragraphs relating to the
linguistic knowledge required of candidates, from each of
the calls for applications set out below:

— in the call for applications for the position of Data-
protection officer, as condition No 17:
‘Excellent
knowledge of English and French. Ability to work in
other European Union languages would be an asset’.

— in the call for applications for the position of Law
officer, as condition No 19: ‘Excellent knowledge of
English and French. Ability to work in other Euro-
pean Union languages would be an asset’.

An action against Eurojust was brought before the Court of
Justice of the European Communities on 8 April 2003 by the
Kingdom of Spain, represented by L. Fraguas Gadea, with an
address for service in Luxembourg.

— in the call for applications for the position of Press
officer, as condition No 12: ‘Ability to speak at least
English and French. Knowledge of other official
European Union languages would be an asset’.