Case T-16/04: Action brought on 15 January 2004 by Arcelor S.A. against the European Parliament and the Council of the European Union
Date: 2004-03-20
Institutions: Court of First Instance
Subjects: Council of the European Union, European Parliament, action for annulment (EU), greenhouse gas, iron and steel industry, tradeable emission permit

C 71/36

EN

Official Journal of the European Union

20.3.2004

Pleas in law and main arguments

The context of the contested Decision was an application for
marketing authorisation made to the European Agency for the
Evaluation of Medicinal Products in 2001, in accordance with
scientific advice from the Committee for Proprietary Medicinal
Products (CPMP), which issued a favourable Opinion in June
2003. However, the Commission decided not to proceed with
a decision on the authorisation of the medicinal product in
question, OMNITROP, under Article 10(1)(a)(ii) and Annex I
of the Directive 2001/83 of the European Parliament and
Council of 6 November 2001, on the Community Code
relating to medicinal products for human use (1), on the basis
that the performance of ‘comparability studies’ implied that
the legal conditions for the application of the procedure were
not met. Hence, the dispute between the applicant and the
Commission relates to the interpretation of Article 10(1)(a)(ii)
and Annex I of this Directive, which govern ‘bibliographical
applications’ based on the well-established medicinal use of
the product concerned.

— The scientific rigour of comparability exercises is clear
from the CPMP’s 2001 Note for Guidance and from the
CPMP’s review of OMNITROP.

— The use of comparability studies is therefore fully consist-
ent with the objective of safeguarding public health, and
certainly does not represent any relaxation of health
protection standards.

— The CPMP consistently opposed the use of the essential

similarity route.

(1) OJ L 311 of 28.11.2001, p. 67.
(2) Case C-440/93 [1995] ECR I-2851.

The applicant considers in this respect that the defendant’s
position conflicts with the clear wording of the applicable
legislation. It would also conflict with the scientific view of the
body established to provide the Community with expertise in
these matters, the CPMP.

Action brought on 15 January 2004 by Arcelor S.A.
against the European Parliament and the Council of the
European Union

the applicant submits, as a single plea,

Accordingly,
the
infringement of Article 10(1)(a)(ii) and Annex I, mainly
indent d) of Sections I of its Parts 3 and 4, for the following
grounds:

— Annex I to Directive 2001/83 expressly requires the
CPMP to make a judgment on whether two products are
similar, and this necessarily requires the applicant to
support its explanations with comparability studies.

— The rules established by the Scotia judgment (2), as
invoked, in the Commission’s Decision, have previously
been reversed by the Commission’s own legislation.

— The Commission has publicly rejected the ‘extremely
rigid’ approach of the Scotia judgment and called for a
‘flexible’ approach to Article 10(1)(a)(ii) of the Directive
2001/83.

— The principles governing comparability exercises have
been established by the Communty’s centre of expertise
on biotechnology-derived products (the EMEA) and the
exercise will always be carried out under the EMEA’s
supervision.

(Case T-16/04)

(2004/C 71/64)

(Language of the case: English)

An action against the European Parliament and the Council of
the European Union was brought before the Court of First
Instance of the European Communities on 15 January 2004
by Arcelor S.A., Luxembourg, represented by Dr W. Deselaers,
Dr Bernd Meyring and Dr B. Schmitt-Rady, lawyers.

The applicant claims that the Court should:

— Declare Articles 4, 12(3) and 6(2e), 9, 16(2), (3) and (4),
in conjunction with Article 2, Annex I and Annex III,
No. 1, of Directive 2003/87/EC of the European Parlia-
ment and of the Council of 13 October 2003 establishing
a scheme for greenhouse gas emission allowance trading
within the Community and amending Council Directive
96/61 EC void to the extent that these provisions apply
to installations for the production of pig iron or steel
(primary or secondary fusion) including continuous cast-
ing, with a capacity exceeding 2,5 tonnes per hour;

20.3.2004

EN

Official Journal of the European Union

C 71/37

— Declare that the Defendants are bound to make good the
damage that the Applicant has suffered, and may yet
suffer, as a result of the adoption of Articles 4, 12(3) and
6(2e), 9, 16 (2), (3) and (4), in conjunction with Article 2,
Annex I and Annex Ill, No. 1, of Directive 2003/87/EC;

— Order the Defendants to bear the costs.

Action brought on 13 January 2004 by Le Front National
and seven others against Council of the European Union
and European Parliament

(Case T-17/04)

(2004/C 71/65)

Pleas in law and main arguments

(Language of the case: French)

The applicant is a steel producing company with installations
for the production of pig iron and steel in France, Spain,
Germany and Belgium. Directive 2003/87/EC of the European
Parliament and of the Council of 13 October 2003 (1) establish-
es a scheme for greenhouse gas emission allowance trading
within the Community. This Directive institutes a licensing
system for certain activities leading to the emission of green-
house gas, among them the production of pig iron or steel,
and makes provision for emission allowances to be allocated
to relevant installations. Emissions of greenhouse gases by an
installation in excess of its allowance for the relevant trading
period is subject to monetary penalties.

In support of
its application the applicant submits that
the contested provisions infringe its fundamental rights to
property and the pursuit of an economic activity, by requiring
it to operate its plants under economic conditions that are
unsustainable. The applicant further claims that there is very
little technological potential for steel producers to reduce their
greenhouse gas emissions beyond the 18 % reduction already
achieved since 1990 and that, therefore it is an infringement
of the principle of proportionality to subject such installations
to the Directive in question. The applicant also invokes a
breach of the principle of equality, alleging that other sectors
in direct competition with the applicant and with comparable
or even higher emissions of greenhouse gases, such as
producers of non-ferrous metals and chemicals, are not subject
to the Directive. In the same context the applicant further
alleges that steel producers find themselves in a unique lock-in
situation preventing them from passing on to their clients any
monetary fines imposed for excessive emissions. The applicant
also submits that the contested provisions infringe the freedom
of establishment within the European Union by affecting its
right to transfer production freely from a less efficient plant in
one Member State to a more efficient plant in another Member
State. Finally, the applicant also invokes a breach of the
principle of legal certainty, claiming that the Directive imposes
obligations whose financial implications are unforeseeable.

(1) Directive 2003/87/EC of the European Parliament and of the
Council of 13 October 2003 establishing a scheme for greenhouse
gas emission allowance trading within the Community and
amending Council Directive 96/61/EC. OJ L 275 of 25.10.2003,
p. 32-46.

residing in Villeneuve-Loubey,

An action was brought before the Court of First Instance of
the European Communities on 13 January 2004 against the
Council of the Union and the European Parliament by Le
Front National, established in St-Cloud, France, Marie- France
Stirbois,
France, Bruno
Gollnisch, residing in Limonest, France, Carl Lang, residing in
Boulogne-Billancourt, France, Jean-Claude Martinez, residing
in Montpellier, France, Philip Claeys, residing in Overijse,
Belgium, Koen Dillen, residing in Antwerp, Belgium, and Mario
Borghezio, residing in Turin, Italy, represented by a Maître
Wallerand de St-Just, lawyer.

The applicants claim that the Court of First Instance should:

— Annul Regulation (EC) No 2004/2003 of the European
Parliament and of the Council of 4 November 2003 on
the regulations governing political parties at European
level and the rules regarding their funding;

— Order the European Parliament and the council to pay
the costs and lawyers’ fees amounting to EUR 10 000.

Pleas in law and main arguments

In support of their application, the applicants rely on the same
pleas as those put forward by the applicant in Case T-13/04 (1).
They also claim that the contested regulation infringes French
Law No 95-65 of 19 January 1995 on the financing of political
parties. The latter law prohibits financing by legal persons,
whereas the contested regulation contains no such prohibition
and could result in evasion of the French prohibition.

(1) Case T-13/04 Bonde and Others v Parliament and Council.