Case C-501/06 P: 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 Services Unlimited v Commission of the European Communities
Date: 2007-02-24
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), Spain, action for annulment (EU), appeal, fixing of prices, pharmaceutical product, selling price

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.