Case C-526/04: Reference for a preliminary ruling by the Court of Cassation, Commercial, Financial and Economic Division, France by order of that court of 14 December 2004 in the case of Laboratoires Boiron S.A. against Agence centrale des organismes de sécurité sociale (Central Agency for Social Security Bodies)
Date: 2005-03-19
Institutions: Court of Justice
Subjects: EU law - national law, France, State aid, control of State aid, interpretation of the law, pharmaceutical industry, proof, social security legislation, social-security contribution

19.3.2005

EN

Official Journal of the European Union

C 69/5

The Kingdom of Spain claims that the Court should:

1. Set aside in full the judgment of the Court of First Instance
(Fifth Chamber, extended composition) of 21 October 2004
in Case T-36/99 between Lenzing AG and the Commission
of the European Communities, supported by the Kingdom
of Spain, which annulled Article 1(1) of Commission Deci-
sion 1999/395/EC (1) of 28 October 1998 on State aid
implemented by Spain in favour of Sniace SA, located in
Torrelavega, Cantabria, as amended by Commission Deci-
sion 2001/43/EC (2) of 20 September 2000;

2. In the new judgment to be delivered, grant all the forms of
order which it sought at
instance and accordingly
first
dismiss the action as inadmissible, or, in the alternative, as
unfounded;

3. Order the defendant to pay the costs under Article 69(2) of

the Rules of Procedure.

Pleas in law and main arguments:

1. According to the decision as amended in 2000, annulled by
the judgment, the rescheduling agreement between Sniace
and the General Social Security Fund and the rescheduling
agreements concluded in 1993 and 1995 between Sniace
and Fogasa did not constitute State aid.

2. The judgment appealed against alleges that

the General
Social Security Fund and Fogasa not only concluded resche-
duling agreements with Sniace, which was in financial diffi-
culties, but also, and in particular, that they tolerated Snia-
ce's failure to perform those agreements.

3. The grounds for the Kingdom of Spain's appeal against the

abovementioned judgment are as follows:

— Error in law, as the action was admitted on the assump-
tion that
the applicant was individually concerned,
contrary to case-law according to which the applicant's
position on the market must have
substantially
worsened.

— Error in law in the interpretation and application of the
private creditor test, since on the basis of the facts stated
to be proven it was assumed that the conduct of the
public institutions investigated did not fulfil the private
creditor test.

(1) OJ L 149 of 16.6.1999, p. 40.
(2) OJ L 11 of 16.1.2001, p. 46.

Reference for a preliminary ruling by the Court of Cassa-
tion, Commercial, Financial
and Economic Division,
France by order of that court of 14 December 2004 in the
case of Laboratoires Boiron S.A. against Agence centrale
des organismes de sécurité sociale (Central Agency for
Social Security Bodies)

(Case C-526/04)

(2005/C 69/11)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Court of Cassation,
Commercial, Financial and Economic Division, France, of 14
December 2004,
the Court Registry on 29
December 2004 for a preliminary ruling in the case of Labora-
toires Boiron S.A. against Agence centrale des organismes
de sécurité sociale on the following questions:

received at

1. Must Community law be interpreted as meaning that a
pharmaceutical laboratory liable to pay a contribution such
as that under Article 12 of Law No 97-1164 of 19
December 1997 on social security funding for 1998 is, in
order to obtain its repayment, entitled to plead that the fact
that wholesale distributors are not liable for that contribu-
tion constitutes State aid?

2. If the answer to question 1 is in the affirmative and since
the success of the claim for repayment may depend solely
on evidence produced by the claimant, must Community
law be interpreted as meaning that rules of national law,
which make that repayment subject to proof by the clai-
mant that the advantage received by the wholesale distribu-
tors exceeds the costs which they bear in discharging the
public service obligations imposed on them by the national
legislation or that the conditions laid down by the Court of
Justice in Altmark are not satisfied, constitute rules of
evidence which have the effect of making it practically
impossible or excessively difficult to secure repayment of a
mandatory contribution, such as that under Article 245-6-1
of the Social Security Code, which has been claimed before
the competent authority, on the ground that the exemption
from the contribution to which those wholesale distributors
are entitled constitutes State aid which has not been notified
to the Commission of the European Communities?