Case T-141/03: Action brought on 14 April 2003 by Sniace, S.A. against the Commission of the European Communities
Date: 2003-07-19
Institutions: Court of First Instance
Subjects: European Commission, Spain, State aid, action for annulment (EU), credit institution, silviculture, wood industry

C 171/32

EN

Official Journal of the European Union

19.7.2003

The applicant claims that the Court should:

— annul the decision of the Board of Appeal of 13 February
2003 and/or the corrigendum of the decision of the First
Board of Appeal of 13 March 2003;

— order the defendant to pay all the costs associated with

these proceedings.

Pleas in law and main arguments

The origin of the action is the same as in Case T-380/02
(SUCCESS-MARKETING Unternehmensberatungsgesellschaft
v OHIM, (OJ C 101 of 26.4.2003, p. 35)), and the pleas in law
and arguments correspond to those submitted in that case.

Action brought on 18 April 2003 by Shering-Plough Ltd.
against the Commission of the European Communities
and the European Agency for the Evaluation of Medicinal
Products (‘EMEA’)

(Case T-133/03)

(2003/C 171/55)

(Language of the case: English)

An action against the Commission of the European Communi-
ties and the European Agency for the Evaluation of Medicinal
Products (‘EMEA’) was brought before the Court of First
Instance of the European Communities on 18 April 2003 by
Shering-Plough Ltd., Brussels, Belgium, represented by Dr.
G. Berrisch and Mr P. Bogaert, lawyers.

The applicant claims that the Court should:

— annul the Decision of 14 February 2003 of the EMEA
rejecting a so-called type I variation for the name of the
into
medicinal product ‘Allex 5 mg oral
‘Allex Reditabs 5 mg oral lyophilisate’.

lyophilisate’

— order the Defendants to pay the Applicant’s costs

Pleas in law and main arguments

approved under the name ‘Allex’. This Marketing Authorisation
(‘MA’) covers three pharmaceutical forms: film-coated tablets,
syrup and an oral lyophilisate.

On 2 October 2002, the applicant submitted to the EMEA an
application for a type I variation of the MA to change the
lyophilisate form from ‘Allex 5 mg oral
name of the oral
lyophilisate’ to ‘Allex Reditabs 5 mg oral lyophilisate’. In the
light of further explanations given by the applicant, the EMEA
refused with the contested decision to allow the name change.

In support of its claim, the applicant invokes violations of the
applicable legislation and of the principle of non-discrimi-
nation. Furthermore, the applicant submits that its rights of
defence have been violated and that the EMEA has violated the
obligation to state reasons.

According to the applicant, the contested decision wrongfully
applied the Judgment of the Court of First Instance in Case
T-123/00 Thomae (1) to refuse the proposed name change.
The applicant argues that the present case does not concern
the question of whether different names can be used for the
same medicinal product but the question of whether different
names can be used for different medicinal products covered by
the same MA. As a consequence, the applicant submits that
the Judgment in Case T-123/00 does not apply nor can it be
extended to apply in the present case.

The applicant claims furthermore that the EMEA has violated
the principle of non-discrimination. According to the appli-
cant, there is no objective justification to treat the Marketing
Authorisation Holders whose two pharmaceutical forms are
covered by the same MA and those whose two pharmaceutical
forms are covered by two MA differently.

(1) Judgement of 10.12.2002, Case T-123/00 Dr. Karl Thomae

GmbH v Commission (not published yet).

Action brought on 14 April 2003 by Sniace, S.A. against
the Commission of the European Communities

(Case T-141/03)

(2003/C 171/56)

(Language of the case: Spanish)

The applicant is active in the field of medicinal products and
is the Marketing Authorisation Holder for medicinal products

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the

19.7.2003

EN

Official Journal of the European Union

C 171/33

European Communities on 14 April 2003 by Sniace, S.A.,
whose registered office is in Madrid, represented by José Luis
Baró Fuentes, lawyer.

The applicant claims that the Court should:

— annul Article 1 of the Decision of 11 December 2002 in
so far as it states Spain has granted aid to Sniace, S.A.
amounting to EUR 7 388 258;

3.

— in the alternative, maintain Article 1 of the Decision of
11 December 2002 in so far as it finds that the State aid
is compatible with the common market;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant company in these proceedings objects to the
description as ‘aid granted by a Member State or through State
resources’ of a contract for a subordinated convertible loan
with profit participation, amounting to EUR 12 020 242,
entered into with Caja Cantabria, together with a liquidity
agreement, which provided for the conversion into equity of
credits under the loan.

In support of its claims, the applicant relies on the following
pleas in law and main arguments:

1. Misinterpretation of the concept of ‘aid granted by a
Member State or through State resources’ laid down in
Article 87(1) EC. First, the applicant disputes that the
Commission has established in its final decision that the
funds used by Caja Cantabria to finance the loan with
profit participation made to Sniace were ‘State resources’.
It points out, in that regard, that Caja Cantabria is a
private credit institution and thus governed by private
law. Its funds are not State resources but are private funds
provided by private individuals and undertakings. In the
present case, Caja Cantabria acted as a private investor
which invests its capital by reference to relatively short-
term profitability. Secondly, the applicant states that the
decision to finance Sniace was a strictly commercial
decision adopted in accordance with criteria relating to
operational profitability and that the public authorities
played no part in the technical or commercial decision to
grant the loan.

2. Manifest error of assessment in the application of the rule
of ‘private investor in a market economy’. According
to the applicant, a detailed analysis of the conditions
together with a comparison of
governing the loan,

the conditions offered by Caja Cantabria against offers
received from other private credit institutions and their
adherence to the guidelines laid down by the Commission
in its Notice to the Member States of 13 November
1993, lead to the conclusion that the loan with profit
participation was granted under market conditions.

Infringement of the principles of legal expectations and
proportionality. The applicant claims in this regard, first,
that the lawfulness of
the general system in Spain
concerning the granting of loans with profit participation
to undertakings undergoing rationalisation, conformity
with the formal requirements laid down by the Director
de Ayudas de Estado (Director for State aid) (namely:
documentary evidence that the loan was granted under
market conditions), and the assurances provided by him
that no further action would be taken, gave rise to a
legitimate expectation on the part of the applicant that
the administrative procedure would be concluded either
by a decision that no further investigations would ensue
or by a finding that the loan could not be considered to
be State aid. Secondly, the applicant is of the view that
the duration of the investigation (58 months) and the
means invested by the Commission in enquiring into a
commercial transaction that was not at all technically
complicated go beyond the limits of what is normally
appropriate or necessary in this kind of operation.

4.

Finally, the applicant undertaking alleges breach of its
in particular, of professional
rights of defence and,
secrecy as protected by Article 287 EC inasmuch as the
Commission forwarded, at the first request, the replies
of
the Spanish authorities (including the applicant’s
comments) to the lawyers for the undertaking whose
complaint had given rise to the investigation.

Action brought on 28 April 2003 by Nadine Schmit
against the Commission of the European Communities

(Case T-144/03)

(2003/C 171/57)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 April 2003 by Nadine Schmit,
residing in Ispra (Italy), represented by Pierre-Paul Van
Gehuchten and Pierre Jadoul,
lawyers, with an address for
service in Luxembourg.