Case C-471/07: Reference for a preliminary ruling from the Conseil d'État (Belgium) lodged on 24 October 2007 — Association Générale de l'Industrie du Médicament ASBL, Bayer SA, Servier Benelux SA, Janssen Cilag SA, Pfizer SA v Belgian State — Intervener: Sanofi-Aventis Belgium SA
Date: 2007-10-24
Institutions: Court of Justice
Subjects: Belgium, fixing of prices, health costs, health insurance, interpretation of the law, medicinal product

26.1.2008

EN

Official Journal of the European Union

C 22/21

— award the appellants interest for late payment on the
basis of the rate set by the European Central Bank on all
sums corresponding to the difference between the salary
corresponding to their classification in the decision to
appoint them and the classification to which they ought
to have been entitled, until the date on which the deci-
sion to classify them in their proper grade is taken;

— order the defendant to pay all the costs incurred at first

instance and on appeal.

Grounds of appeal and main arguments

After stating, at the outset, that the Court of First Instance
treated all the appellants in the same way in the contested judg-
ment without taking into account the particular situation of
each of them, and that it based its decision on the presumption,
which they dispute, that the legality of their grade classification
can be assessed only as from the date of their appointment, the
appellants raise two grounds in support of their appeal.

First

By their first ground of appeal the appellants allege that the
Court of
Instance was wrong in concluding that
Article 12(3) of Annex XIII to the Staff Regulations is lawful. In
that regard, they claim, first, that the Court of First Instance
infringed Article 10 of the old Staff Regulations in so far as it
assimilated the substitution of grades which took place in the
present case to a ‘specific’ adaptation of the transitional provi-
sions leading towards the new career structure,
justifying the
fact that the Staff Regulations Committee was not re-consulted,
even though the consequences, in particular financial, of that
substitution of grades for the situation of the persons concerned
are considerable and amply justified consultation of
that
committee.

In support of that same ground of appeal, the appellants claim,
second, an infringement of
the principle of vested rights.
Contrary to what was held by the Court of First Instance, the
relevant question in the present case was not whether there was
a vested right in being appointed, but a vested right in being
classed in a certain grade in the event of appointment. Although
it is not disputed that a competition notice and inclusion in a
list of suitable candidates do not grant entitlement to recruit-
ment, that notice and that inclusion do, however, create a right
for the participants in the competition and, a fortiori, for those
on the list of laureates, to be treated in accordance with the
competition notice. That right constitutes the consideration for
the obligation on the part of the appointing authority to respect
the framework which it laid down for itself in the competition
notice and which corresponds to the requirements of the posts
to be filled and the interests of the service.

their right to rely, in the event of actual recruitment, on the clas-
sification criteria laid down in the competition notice and
applicable, therefore, to the recruitment of all the laureates of
that competition. In addition, the Court in no way carried out
an examination of the possible justification for the difference in
treatment made between the two categories of officials at issue.

The appellants claim, fourth, that the Court of First Instance
infringed the principle of legitimate expectations and misinter-
preted the evidence. The documents submitted to that court
contain a large amount of information capable of substantiating
the claim that the appellants actually received specific assurances
that they would be recruited at the grade stipulated in the
competition notice.

Finally, the appellants claim that the Court of First Instance
misconstrued the scope of Articles 5, 7 and 31 of the Staff
Regulations and, in that regard, also infringed the duty of the
Community judicature to give reasons.

By their second ground of appeal, the appellants contest the
judgment under appeal further in that it dismissed the actions
brought against the decisions concerning their appointment on
the ground that, although the defendant infringed its duty to
in
provide pre-contract information, that inadequacy cannot,
in
itself, render the contested decisions unlawful. They claim,
that regard, the concurrent infringement of the principles of
sound administration,
legitimate expectations,
transparency,
good faith, equal treatment and equivalence between job and
grade and the duty of care.

Reference for a preliminary ruling from the Conseil d'État
(Belgium)
lodged on 24 October 2007 — Association
Générale de l'Industrie du Médicament ASBL, Bayer SA,
Servier Benelux SA, Janssen Cilag SA, Pfizer SA v Belgian
State — Intervener: Sanofi-Aventis Belgium SA

(Case C-471/07)

(2008/C 22/40)

Language of the case: French

Referring court

Conseil d'État

The appellants claim, third, that the Court of First Instance
infringed the principle of equal treatment in making a distinc-
the competition who were
tion between the laureates of
appointed before 1 May 2004 and those who were appointed
after that date since, in any case, the hypothetical nature of the
appointment of the laureates of a competition does not infringe

Parties to the main proceedings

Applicants: Association Générale de l'Industrie du Médicament
ASBL, Bayer SA, Servier Benelux SA, Janssen Cilag SA, Pfizer SA

Defendant: Belgian State

C 22/22

EN

Official Journal of the European Union

26.1.2008

Questions referred

1. Is the review of macro-economic conditions referred to in
Article 4(1) of Council Directive 89/105/EEC of 21 December
1988 relating to the transparency of measures regulating the
prices of medicinal products for human use and their inclu-
sion in the scope of national health insurance systems (1) to
be understood as meaning only review as to whether health-
care expenditure is manageable, or must it also extend to
macro-economic conditions in the pharmaceutical industry
sector whose products are liable to be made subject to a
price freeze?

2. May the review of macro-economic conditions referred to in
Article 4(1) of Council Directive 89/105/EEC of 21 December
1988, cited above, be based on a general trend or trends,
such as, for example, ensuring balance in healthcare, or must
it be based on more specific criteria?

(1) OJ L 40 of 11.2.1989, p. 8.

Reference for a preliminary ruling from the Conseil d'État
(Belgium)
lodged on 24 October 2007 — Association
Générale de l'Industrie du Médicament ASBL, Bayer SA,
Pfizer SA, Servier Benelux SA, Sanofi-Aventis Belgium SA
v Belgian State

must Article 4(1) of
directly applicable in the domestic legal systems of
Member States?

that directive be considered to be
the

2. May Article 4(1) of Directive 89/105/EEC of 21 December
1988 be interpreted as meaning that the resumption for one
year, after an absence of 18 months, of a general price freeze
in respect of refundable medicinal products which had lasted
eight years exempts the Member State from carrying out a
review, when the freeze is resumed, of the macro-economic
conditions affected by that freeze?

3. Is the review of macro-economic conditions referred to in
Article 4(1) of Council Directive 89/105/EEC of 21 December
1988, cited above, to be understood as meaning only review
as to whether healthcare expenditure is manageable, or must
it also extend to macro-economic conditions in the pharma-
ceutical industry sector whose products are liable to be made
subject to a price freeze?

4. May the review of macro-economic conditions referred to in
Article 4(1) of Council Directive 89/105/EEC of 21 December
1988, cited above, be based on a general trend or trends,
such as, for example, ensuring balance in healthcare, or must
it be based on more specific criteria?

(1) OJ L 40 of 11.2.1989, p. 8.

(Case C-472/07)

(2008/C 22/41)

Language of the case: French

Reference for a preliminary ruling from the Conseil d'Etat
lodged on 25 October 2007 — Association
(France)
Nationale pour la Protection des Eaux et Rivières — TOS,
Association OABA v Ministère de l'écologie, du développe-
l'aménagement durables — Intervener:
ment

et de
Association France Nature Environnement

Referring court

Conseil d'État

Parties to the main proceedings

(Case C-473/07)

(2008/C 22/42)

Language of the case: French

Applicants: Association Générale de l'Industrie du Médicament
ASBL, Bayer SA, Pfizer SA, Servier Benelux SA, Sanofi-Aventis
Belgium SA

Referring court

Conseil d'Etat

Defendant: Belgian State

Questions referred

Parties to the main proceedings

1. Since the period for transposition of Council Directive of
21 December 1988 relating to the transparency of measures
regulating the prices of medicinal products for human use
and their inclusion in the scope of national health insurance
systems (89/105/EEC) (1) expired on 31 December 1989,

Applicants: Association Nationale pour la Protection des Eaux et
Rivières — TOS, Association OABA

Defendant: Ministère de l'écologie, du développement et de
l'aménagement durables