Case C-500/06: Reference for a preliminary ruling from the Giudice di Pace di Genova (Italy) lodged on 11 December 2006 — Corporación Dermoestética SA v To Me Group Advertising Media
Date: 2007-02-24
Institutions: Court of Justice
Subjects: advertising, aesthetic surgery, interpretation of the law, professional ethics, professional society, therapeutics

C 42/10

EN

Official Journal of the European Union

24.2.2007

Appeal brought on 5 December 2006 by CAS Succhi di
Frutta
on
13 September 2006 in Case T-226/01 CAS Succhi di Frutta
SpA v Commission

judgment

delivered

against

SpA.

the

(Case C-497/06P)

(2007/C 42/16)

Language of the case: Italian

Parties

Appellant: CAS Succhi di Frutta SpA (represented by: F. Sciau-
done, R. Sciaudone and D. Fioretti, Avvocati)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Annul the judgment under appeal and refer the case back to
the Court of First Instance so that it may give a ruling on
the merits in the light of the information provided by the
Court of Justice;

Lastly, with regard to the costs incurred in defending its case,
the appellant claims; breach of the principle of the right to
compensation for loss relating to the costs of technical and legal
assistance and infringement of the principle of compensation
for the expenses incurred in participating in the tendering
procedure.

Reference for a preliminary ruling from the Giudice di
Pace di Genova (Italy) lodged on 11 December 2006 —
Corporación Dermoestética SA v To Me Group Advertising
Media

(Case C-500/06)

(2007/C 42/17)

Language of the case: Italian

— order the Commission to pay the costs of

the present
proceedings and of the proceedings at first instance relating
to Case T-226/01.

Referring court

Giudice di Pace di Genova

Pleas in law and main arguments

The pleas in law put forward challenging the judgment of the
Court of First Instance may be divided into four categories,
which relate to: the significance of the judgment in Case C-496/
99 P Commission v CAS; the substitution of fruit; the coefficients
of substitution; the costs incurred by the appellant in arguing its
case.

With regard to the significance of the judgment delivered in
Case C-496/99 P Commission v CAS, the appellant alleges: distor-
tion and misrepresentation of the arguments put forward by the
appellant on the significance of the judgment in Case T-226/01
Commission v CAS; breach of the principle of the authority of
res
the action for damages
referred to in the judgment in Commission v CAS; an error in the
interpretation of
the conditions under which an action for
damages may be brought.

judicata; misrepresentation of

the substitution of

With regard to the substitution of fruit, the appellant alleges: a
failure to provide adequate reasoning in relation to the loss
suffered as a result of the substitution of the fruit and manifest
error of assessment of the appellant's arguments concerning the
unlawfulness of the tendering procedure; an error concerning
the legal significance of
the fruit in the
context of the mechanism of the tendering procedure; breach of
the principle of the authority of res judicata in relation to the
date when it was known with certainty that substituted fruit
was to be received; distortion of the clear sense of the evidence
in the case-file and failure to give adequate reasons concerning
the advantages resulting from the substitution of fruit and the
appellant's knowledge as of March 1996; infringement of proce-
dural rules, manifest distortion of evidence and breach of the
general principles relating to the burden of proof.

With regard to the coefficients of substitution, the appellant
claims; an incorrect assessment of the quantities of fruit to be
taken into account in calculating the loss.

Parties to the main proceedings

Applicant: Corporación Dermoestética SA

Defendant: To Me Group Advertising Media SRL

Questions referred

1. Is it

incompatible with Article 49 of

the EC Treaty for
national legislation, such as that under Articles 4, 5 and 9a
of Law No 175 of 1992 and Ministerial Decree No 657 of
16 September 1994, and/or administrative practices
to
prohibit the broadcasting on national television of advertise-
ments for medical and surgical treatments carried out in
private health care establishments duly authorised for that
purpose, even though that same advertising is permitted on
local television networks, and, at the same time, to impose,
in relation to the broadcasting of those advertisements, a
ceiling on expenditure of 5 per cent of declared income for
the preceding year?

2. Is it

incompatible with Article 43 of

the EC Treaty for
national legislation, such as that under Articles 4, 5 and 9a
of Law No 175 of 1992 and Ministerial Decree No 657 of
to
16 September 1994, and/or administrative practices
prohibit the broadcasting on national television of advertise-
ments for medical and surgical treatments carried out in
private health care establishments duly authorised for that
purpose, even though that same advertising is permitted on
local television networks, and, at the same time, to require,
in relation to the broadcasting of those advertisements, prior
authorisation from each individual municipality and the
opinion of the provincial professional association, and to
impose a ceiling on expenditure of 5 per cent of declared
income for the previous year?

24.2.2007

EN

Official Journal of the European Union

C 42/11

3. Is it contrary to Articles 43 and/or 49 of the EC Treaty for
the broadcasting of advertisements which provide informa-
tion on medical and surgical
treatments of an aesthetic
nature in private health care establishments, duly authorised
for that purpose, to be made subject to additional prior
authorisation by the local authorities and/or professional
associations?

4. By adopting a code of conduct which lays down limits on
the advertising of
the health care professions and by
construing the legislation in force concerning the advertising
of medical services in a manner which considerably restricts
the right of doctors to advertise their own activities, both
measures being binding on all doctors, have the National
Federation of Associations of Doctors, Surgeons and Dentists
group practices
(FNOMCeO)
restricted competition beyond what is permitted under the
relevant national legislation and in breach of Article 81(1)
EC?

associations of

and the

5. In any event,

is the interpretative practice adopted by the
FNOMCeO incompatible with Articles 3(g), 4, 98, 10, 81
and, possibly, Article 86 of the EC Treaty in so far as the
practice is permitted by a national law which requires the
appropriate provincial associations to verify the transparency
and accuracy of advertisements by doctors without indicating
the criteria and procedures to be applied in exercising that
authority?

— annul the Judgment of the Court of First Instance in so far
as it rejects GSK's claim for annulment of Article 1 of the
contested Decision, or take such other action as justice may
require.

— award GSK the costs.

Pleas in law and main arguments

The applicant submits that the contested judgment should be
annulled, in so far as it rejects GSK's claim for annulment of
article 1 of the contested decision on the following grounds:

— The Court of First Instance erred in reaching the conclusion
that the General Sales Conditions produce ap0preciable anti-
competitive effects and thus violate Article 81(1) EC, failing
appropriately to assess their actual
legal and economic
context. Furthermore, (i) the intra-brand price competition
that the Court refers to in its Judgment is itself the result of
a market distortion, and (ii) the Court relied on alleged
marginal advantages that
final consumers in importing
countries could have derived from the participation of the
Spanish wholesalers in intra-brand competition.

— The Court lacked the competence to draw factual conclu-
sions concerning the possible effect upon patients and those
who paid for their medicines, given the absence of a basis
for such conclusions in the contested Commission decision.

Appeal brought on 11 December 2006 by GlaxoSmithKline
Services Unlimited (GSK), anciennement Glaxo Wellcome
plc against the judgment of the Court of First Instance
(Fourth Chamber, Extended Composition) delivered on
27 September 2006 in Case T-168/01: GlaxoSmithKline
the European
Services Unlimited v Commission of

Communities

(Case C-501/06 P)

(2007/C 42/18)

Action brought on 13 December 2006 — Commission of
the European Communities v Italian Republic

(Case C-504/06)

(2007/C 42/19)

Language of the case: Italian

Language of the case: English

Parties

Parties

Applicant: Commission of the European Communities (repre-
sented by: L. Pignataro-Nolin and I. Kaufmann-Bühler, Agents)

Appellant: GlaxoSmithKline Services Unlimited, anciennement
Glaxo Wellcome plc (represented by: I. Forrester QC, J. Venit,
member of the New York Bar, S. Martínez Lage, abogado, A.
Komninos, Δικηγόρος, A. Schulz, Rechtsanwalt)

Defendant: Italian Republic

Forms of order sought

Other parties to the proceedings: Commission of the European
Communities, European Association of Euro Pharmaceutical
Companies (EAEPC), Bundesverband der Arzneimittel-Impor-
teure eV, Spain Pharma, SA, Asociación de exportadores espa-
ñoles de productos farmacéuticos (Aseprofar)

Form of order sought

— declare that, by having failed to transpose correctly in Italian
law Article 3(1) of Council Directive 92/57/EEC (1) of
24 June 1992 on the implementation of minimum safety
and health requirements at temporary or mobile construc-
tion sites (eighth individual Directive within the meaning of
Article 16(1) of Directive 89/391/EEC (2)),
Italian
Republic has failed to fulfil its obligations under that direc-
tive;

the

The applicant claims that the Court should:

— order the Italian Republic to pay the costs.