Case C-123/07: Action brought on 28 February 2007 — Commission of the European Communities v Kingdom of the Netherlands
Date: 2007-04-28
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for failure to fulfil an obligation, legal code, medicinal product, national implementing measure, pharmaceutical legislation, public health

C 95/32

EN

Official Journal of the European Union

28.4.2007

Appeal brought on 28 February 2007 by Eurostrategies
SPRL against the order of the Court of First Instance
(Fourth Chamber) delivered on 1 December 2006 in Case
T-203/06: Eurostrategies sprl v Commission of the Euro-
pean Communities

(Case C-122/07 P)

(2007/C 95/60)

Language of the case: English

The appellant cites Articles 47(1) and 67(3) of the Rules of
Procedure of the Court of First Instance of the European
Communities of 2 May 1991 as examples of the need to
carry out a balancing exercise.

4. The CFI made a manifest error of assessment by distorting
the clear sense of the evidence before it; the evidence in no
way demonstrates notification, by the Commission, to the
appellant, of its request for a 15-day extension.

5. In the alternative to plea 4, the CFI infringed Community
law in holding that an email takes legal effect on sending,
not on receipt.

Parties

(1) OJ L 145, p. 43.

Appellant: Eurostrategies SPRL (represented by: R.A. Lang and
S. Crosby, Solicitors)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

The appellant claims that the Court should:

— annul the Order of the Court of First Instance of 1 December

2006 in Case T-203/06 quo ad its reasoning only.

— make a ruling that the costs of the appeal be awarded in the

appellant's favour.

Pleas in law and main arguments

The appellant maintains that:

1. The Court of First Instance (CFI) infringed the principle of
equality of arms, as enshrined in Article 6(1) of the European
Convention on Human Rights and the EU Treaty by refusing
to hear
the story in respect of
whether or not
the appellant had received a supposed
‘holding reply’, which would, had it been received, have
extended the Commission's deadline by fifteen days, thus
obviating the need for a Court action.

the Appellant's side of

Further the CFI failed to hear the appellant's side of the story
in respect of a second letter which the Commission
contended was sent by email but which was in fact sent by
fax.

the fulfilment of

2. The CFI infringed Regulation (EC) No 1049/2001 (1) of the
European Parliament and the Council of 30 May 2001
regarding public access to European Parliament, Council and
Commission documents by finding that the Commission was
entitled to the benefit of a 15-day extension of time pursuant
to Article 8(2) of the Regulation, in the absence of evidence
of
the requisite conditions for such an
extension. One of the requisite conditions is that the ‘appli-
cant is notified’. However, the only evidence produced by the
Commission was the effect that an email was sent, not that it
was received. The appellant contends that an email does not
take legal effect until it is seen by the recipient. Thus, notifi-
cation did not take place and so the stipulations of Article 8
(2) of Regulation 1049/2001 were not fulfilled.

3. The CFI infringed a mandatory rule of procedure by not
carrying out a balancing exercise in reaching its judgment.

Action brought on 28 February 2007 — Commission of
the European Communities v Kingdom of the Netherlands

(Case C-123/07)

(2007/C 95/61)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Stromsky and H. van Vliet, Agents)

Defendant: Kingdom of the Netherlands

Form of order sought

— declare that, by failing to bring into force all of the laws,
and administrative provisions necessary to
regulations
comply with Directive 2004/27/EC (1) of
the European
Parliament and of the Council of 31 March 2004 amending
Directive 2001/83/EC on the Community code relating to
medicinal products for human use, or in any event by not
informing
the
Kingdom of the Netherlands has failed to fulfil its obliga-
tions under that directive;

the Commission of

those provisions,

— order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The period within which the directive had to be transposed in
national law expired on 30 October 2005.

(1) OJ 2004 L 136, p. 34.