Case C-198/03 P: Appeal brought on 12 May 2003 by the Commission of the European Communities against the judgment delivered on 26 February 2003 by the Second Chamber of the Court of First Instance of the European Communities in Joined Cases T-344/00 and T-345/00 between CEVA Santé animale SA and Pharmacia Entreprises SA, supported by Fédération européenne de la santé animale (Fedesa), and the Commission of the European Communities
Date: 2003-09-06
Institutions: Court of Justice
Subjects: action for annulment (EU), animal health, hormone, pharmaceutical industry, pharmaceutical legislation

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Official Journal of the European Union

6.9.2003

in the dispute between Dr Georg Friedrich Baur Jr., executor of
the estate of Dr Georg Friedrich Baur Sr. and Hauptzollamt
Kiel on the following questions:

1.

Is Article 3a(1) (second indent) (b) of Council Regulation
(EEC) No 857/84 (1) of 31 March 1984 adopting general
the levy referred to in
rules for the application of
Article 5c of Regulation (EEC) No 804/68 (2)
in the
milk and milk products sector, as amended by Council
Regulation (EEC) No 1639/91 (3) of 13 June 1991, to be
construed as permitting a special reference quantity to be
allocated provisionally to a formerly non-marketing
holding which, as a result of its having switched in
the meantime to the production of other agricultural
products, was — at the time of its request for the
allocation — able to produce the reference quantity
requested only by means of production resources (feed-
crop areas, cows and other production resources)
additionally leased for that specific purpose?

2. On a proper construction of the second sentence of
the second subparagraph of Article 3a(4) of Council
Regulation (EEC) No 857/84 of 31 March 1984 adopting
general rules for the application of the levy referred to in
Article 5c of Regulation (EEC) No 804/68 in the milk and
milk products sector, as amended by Council Regulation
(EEC) No 1639/91 of 13 June 1991, was the special
reference quantity that had been definitively allocated
also to be returned to the national reserve where the
formerly non-marketing holding as defined in Question 1
had received and could deliver the special reference
quantity provisionally allocated to it only by means of
production resources (feed-crop areas, cows and other
production resources) additionally leased for that specific
purpose and where that holding had surrendered those
leased production resources to the lessor before 1 July
1994?

3.

If Question 2 is answered in the negative:

On a proper construction of the second subparagraph of
Article 3a(4) of Council Regulation (EEC) No 857/84 of
31 March 1984 adopting general rules for the application
of the levy referred to in Article 5c of Regulation (EEC)
No 804/68 in the milk and milk products sector, as
amended by Council Regulation (EEC) No 1639/91 of
13 June 1991, was the special reference quantity that had
been definitively allocated also to be returned to the
national reserve where the formerly non-marketing hold-
ing had definitively abandoned enjoyment of the pro-
duction resources required to deliver the special reference
quantity before 1 July 1994?

4.

If Question 3 is answered in the affirmative:

Is definitive abandonment for the purposes of Question 3
to be understood as meaning that the formerly non-
marketing holding had returned the leased production

resources required to deliver the special reference quantity
to the lessor before 1 July 1994, had ceased milk
production and only resumed such production four
months later, before 1 July 1994 at least, by means of
other production resources both of its own and taken on
lease?

(1) OJ L 90 of 01.04.1984, p. 13.
(2) English special edition...: Series-I 68(I) p. 176.
(3) OJ L 150 of 15.06.1991, p. 35.

Appeal brought on 12 May 2003 by the Commission of
the European Communities against the judgment deliver-
ed on 26 February 2003 by the Second Chamber of the
Court of First Instance of the European Communities in
Joined Cases T-344/00 and T-345/00 between CEVA Santé
animale SA and Pharmacia Entreprises SA, supported by
Fédération européenne de la santé animale (Fedesa), and
the Commission of the European Communities (1)

(Case C-198/03 P)

(2003/C 213/14)

An appeal against the judgment delivered on 26 February
2003 by the Second Chamber of the Court of First Instance of
the European Communities in Joined Cases T-344/00 and
T-345/00 between CEVA Santé animale SA and Pharmacia
Entreprises SA, supported by Fédération européenne de la
santé animale (Fedesa), and the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 12 May 2003 by the Commission
of the European Communities, represented by T. Christoforou
and M. Shotter, acting as agents, with an address for service in
Luxembourg.

The Applicant claims that the Court should:

— set aside the judgment of the Court of First Instance
(Second Chamber) of 26 February 2003 in Joined Cases
T-344/00 and T-345/00 as regards the actions for
damages;

— rule on the substance of the applications for damages by

dismissing them entirely as unfounded;

— order the applicants to pay the Commission’s costs.

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Official Journal of the European Union

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Pleas in law and main arguments

attempt to clarify the scientific and political complexities of
this case as soon as possible, always keeping in mind the
fundamental objective of protecting public health. The CFI’s
findings can also be considered to be insufficiently motivated.

(1)

Error in the interpretation and application of Regulation
2377/90 (2) and, in particular, Article 14 thereof

(4)

The findings of the CFI rest clearly on the interpretation that
Article 14 of Regulation 2377/90 gives the applicants an
enforceable right to have a decision taken on their applications
before January 2000 and, secondly, imposes on the Com-
mission an absolute obligation to act by completing the
scientific evaluation and by taking a final decision in all
applications concerning substances already in use in the
Member States on the date of entry into force of the Regulation
before 1 January 2000, or, failing this, to arrange for a
deferral of that deadline. The Commission submits that this
interpretation is a fundamental error of law that permeates the
entire reasoning on which the CFI’s judgment is based.

(2)

Errors of law in the interpretation and application of the
principle of sound administration

It is submitted that the characterisation of the Commission’s
inaction by the CFI as being such that it gave rise to damages
for a clear and serious breach of the principle of sound
administration is based on the following errors regarding the
interpretation and application of that principle:

— failure to assess the time taken in relation to the different

procedural stages involved;

— failure to give due weight

to the complexity of the
progesterone file in assessing the time taken by the
Commission;

— placing undue emphasis on the time limit found in
Article 14 of Regulation 2377/90 and its relation to the
principle of sound administration;

— failure to take due account of the balancing of interests

that the Commission had to undertake.

(3) Misconstrual of the evidence and inadequate reasoning

The Commission submits that the CFI fundamentally miscon-
strued the factual and scientific record, in the sense that the
claimed ‘inaction’ of the Commission to place progesterone in
one of the annexes to Regulation 2377/90 before 1 January
2000 was fully justified by the prevailing circumstances of this
case and the undisputed scientific uncertainty and the potential
for abuse of progesterone. Far from staying inactive,
the
Commission has been taking a number of concrete steps in its

in the

of
interpretation and
Error
Article 228 EC concerning the non-contractual liability
of the Community

application

The Commission submits that the CFI committed two basic
legal errors. First, it failed to take into account the degree of
discretion enjoyed by the Commission in these cases and held
without proper consideration that the alleged breach of the
principle of sound administration was ‘clear and serious’.
Second, it misinterpreted the provisions of Regulation 2377/
90 and its relationship with other provisions of community
in particular directives 81/851 (3) and 96/22 (4), by
law,
accepting causality between the alleged damage and the
Commission’s ‘inaction’.

(5)
Finally, the Commission submits that the CFI made an
error in law in finding that the Commission is liable for
damages to Pharmacia by failing to take into account its
different position compared with the position of the applicant
Ceva.

(1) OJ C 45, 10/02/2001, p. 19.
(2) Council Regulation (EEC) no 2377/90 of 26 June 1990 laying
down a Community procedure for the establishment of maximum
residue limits of veterinary medicinal products in foodstuffs of
animal origin OJ L 224, 18/08/1990, p. 1.

(3) Council Directive 81/851/EEC of 28 September 1981 on the
approximation of the laws of the Member States relating to
veterinary medicinal products OJ L 317, 06/11/1981, p. 1.

(4) Council Directive 96/22/EC of 29 April 1996 concerning the
prohibition on the use in stockfarming of certain substances
having a hormonal or thyrostatic action and of ß-agonists, and
repealing Directives 81/602/EEC, 88/146/EEC and 88/299/EEC
OJ L 125, 23/05/1996, p. 3.

Reference for a preliminary ruling by the VAT and Duties
Tribunals, Manchester Tribunal Centre, by direction of
that court dated 16 May 2003, in the case of University
of Huddersfield Higher Education Corporation against
Commissioners of Customs and Excise

(Case C-223/03)

(2003/C 213/15)

Justice of the
Reference has been made to the Court of
European Communities by a direction of the VAT and Duties
Tribunals, Manchester Tribunal Centre, dated 16 May 2003,