Case C-519/06 P: Appeal brought on 20 December 2006 by Asociación de exportadores españoles de productos farmacéuticos (Aseprofar) 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, formerly Glaxo Wellcome plc v Commission of the Eurooean communities
Date: 2007-03-10
Institutions: Court of Justice
Subjects: European Commission, Spain, action for annulment (EU), appeal, fixing of prices, pharmaceutical product, selling price

C 56/18

EN

Official Journal of the European Union

10.3.2007

Appeal brought on 19 December 2006 by European Asso-
ciation of Euro Pharmaceutical Companies (EAEPC) against
Instance (Fourth
the Court of First
the judgment of
Chamber,
on
Composition)
27 September 2006 in Case T-168/01: GlaxoSmithKline
the European
Services Unlimited v Commission of

Extended

delivered

Communities

(Case C-515/06 P)

(2007/C 56/31)

españoles

Appeal brought on 20 December 2006 by Asociación de
exportadores
farmacéuticos
de
(Aseprofar) against the judgment of the Court of First
Instance (Fourth Chamber, Extended Composition) deliv-
ered on 27 September 2006 in Case T-168/01: GlaxoS-
mithKline Services Unlimited, formerly Glaxo Wellcome
plc v Commission of the Eurooean communities

productos

(Case C-519/06 P)

(2007/C 56/32)

Language of the case: English

Language of the case: English

Parties

Parties

Appellant: European Association of Euro Pharmaceutical Compa-
nies (EAEPC)
(represented by: M. Hartmann-Rüppel and W.
Rehmann, Rechtsanwälte)

Appellant: Asociación de exportadores españoles de productos
farmacéuticos (Aseprofar)
(represented by: M. Araujo Boyd,
abogado, J. L. Buendía Sierra, membre du service juridique)

Other parties to the proceedings: Commission of the European
Communities, Bundesverband der Arzneimittel-Importeure eV,
Spain Pharma, SA, Asociación de exportadores españoles de
productos farmacéuticos (Aseprofar), GlaxoSmithKline Services
Unlimited, anciennement Glaxo Wellcome plc

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, GlaxoSmithKline Services Unlim-
ited, anciennement Glaxo Wellcome plc

Form of order sought

The applicant claims that the Court should:

— set aside the judgment of the Court of First Instance of
27 September 2006, case no. T-168/01, to the extent the
Court of First Instance annulled the Commission decision
2001/70/E (1) of 8 May 2001.

— to award the costs of the proceedings before the Court of

Justice and the Court of First Instance.

Pleas in law and main arguments

The Appellant claims the following infringements of Com-
munity law by the appealed judgment:

(a) Misapplication of Art. 81(3) EC-the Court of First Instance
disregarded the role and function of Art. 81(3) when alle-
ging the assessment undertaken by the Commission was
insufficient.

(b) Misapplication of Article 81(3) EC by misjudging the

burden of rendering evidence and proof

(c) Misapplication of Article 81(3) EC in consequence of misin-
terpretation or non-consideration of evidence on file, which
proves that the applicant (GSK) did not plead on the require-
ments of Article 81(3) EC sufficiently and by offering
sustainable evidence.

(1) OJ L 302, p. 1.

Form of order sought

The applicant claims that the Court should:

— set aside point 1 of the judgment of the Court of First

Instance of 27 September 2006 in case T-168/01;

— give final judgment in case T-168/01 by entirely rejecting
claim and confirming Commission Decision

GLAXO's
2001/791/EC; and

— set aside points 3, 4, and 5 of the said judgment relating to
costs, and to order GLAXO to bear entirely the costs of case
T-168/01 and of the present appeal.

Pleas in law and main arguments

The applicant submits that the contested judgment should be
annulled on the following grounds:

Erroneous application of Article 81(1) EC

The applicant maintains that the Court of First Instance (herein-
after ‘CFI’) wrongly rejected the Commission's finding that
GLAXO'S dual pricing had as its object the prevention, restric-
tion or distortion of competition and argues that dual pricing
and export bans are anticompetitive by their very nature. The
the CFI has wrongly applied
applicant also submits
article 81(1) EC in the context of a regulated sector, that the
contested judgment incorrectly analyses the legal and economic
context of the case and that the CFI is manifestly wrong in law
in its assessment of the goal of the competition rules contained
in the EC Treaty and in its analysis of consumer welfare arising
from parallel trade.

that

10.3.2007

EN

Official Journal of the European Union

C 56/19

Erroneous application of Article 81(3) EC

According to the contested judgment the Commission failed in
its assessment of the causal link between parallel trade and inno-
vation and between article 4 of the General Sales Conditions
and innovation. The CFI also held that
the Commission's
conclusions regarding the effect of the currency fluctuations on
the parallel trade between Spain and the UK were erroneous.
The applicant submits that the Commission's appraisal regarding
these points was entirely correct and that there was no manifest
error of assessment and that the CFI therefore wrongly inter-
preted article 81(3) EC.

Finally the applicant submits that the CFI reversed the burden of
proof regarding article 81(3) EC and did not correctly analyse
the Commission's evaluation of the second, third and fourth
conditions of that article. The applicant maintains that the four
conditions for granting an exemption under article 81(3) are
cumulative and therefore the non-fulfilment of only one of
these conditions is sufficient grounds for the Commission to
reject the application for exemption. As a consequence the CFI
cannot annul a negative decision if it has not previously comple-
tely assessed the Commission's analysis of the four conditions
contained in article 81(3) and concluded that the Commission
committed manifest errors of assessment as regards those condi-
tions.

Reference for a preliminary ruling from House of Lords
(United Kingdom) made on 20 December 2006 — Stringer
and others v Her Majesty's Revenue and Customs

to take paid
future period as paid annual
annual leave, in either case during a period that would other-
wise be sick leave?

leave and (ii)

2. If a Member State exercises its discretion to replace the
minimum period of paid annual leave with an allowance in
lieu on termination of employment under Article 7(2) of
Directive 2003/88/EEC, in circumstances in which a worker
has been absent on sick leave for all or part of the leave year
in which the employment relationship is terminated, does
Article 7(2)
impose any requirements or lay down any
criteria as to whether the allowance is to be paid or how it is
to be calculated?

(1) OJ L 299, p. 9.

Reference for a preliminary ruling from the Oberverwal-
tungsgericht für das Land Nordrhein-Westfalen (Germany)
lodged on 28 December 2006 — Heinz Huber v Federal
Republic of Germany

(Case C-524/06)

(2007/C 56/34)

Language of the case: German

(Case C-520/06)

(2007/C 56/33)

Language of the case: English

Referring court

Oberverwaltungsgericht für das Land Nordrhein-Westfalen

Referring court

House of Lords

Parties to the main proceedings

Applicant: Stringer and others

Defendant: Her Majesty's Revenue and Customs

Questions referred

1. Does Article 7(1) of Directive 2003/88/EC (1) mean that a
worker on indefinite sick leave is entitled (i) to designate a

Parties to the main proceedings

Applicant: Heinz Huber

Defendant: Federal Republic of Germany

Questions referred

Is the general processing of personal data of foreign citizens of
the Union in a central register of foreign nationals compatible
with

(a) the prohibition of discrimination on grounds of nationality
against citizens of the Union who exercise their right to
move and reside freely within the territory of the Member
States (first paragraph of Article 12 EC in conjunction with
Articles 17 EC and 18(1) EC),