Case C-447/07: Action brought on 1 October 2007 — Commission of the European Communities v Italian Republic
Date: 2007-12-08
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, crew, discrimination on the basis of nationality, fishing vessel, free movement of workers, job access, ship's flag

8.12.2007

EN

Official Journal of the European Union

C 297/25

the European Communities against

Appeal brought on 28 September 2007 by the Commission
of
the judgment
delivered on 18 July 2007 in Case T-189/02 Ente per le
European
Ville Vesuviane

the

of

v Commission
Communities

(Case C-445/07 P)

(2007/C 297/40)

Language of the case: Italian

Parties

Appellant: Commission of the European Communities (repre-
sented by: L. Flynn, Agent, assisted by A. Dal Ferro, avvocato)

Other party to the proceedings: Ente per le Ville Vesuviane

Form of order sought

— set aside the judgment delivered on 18 July 2007 in Case
T-189/02 in so far as it declares that the action for annul-
ment brought by the Ente per le Ville Vesuviane is admis-
sible;

— declare that the action for annulment brought by the Ente
against Commission Decision

le Ville Vesuviane
per
D(2002) 810111 is inadmissible;

— order the Ente per le Ville Vesuviane to pay the costs of the
present proceedings and of the proceedings at first instance.

Pleas in law and main arguments

The Commission considers its own challenge against the judg-
ment of the Court of First Instance admissible since, although it
won the case at first instance as to the substance, it was unsuc-
cessful regarding the plea of inadmissibility against the Ente per
le Ville Vesuviane.

According to the applicant, the judgment under appeal is defec-
tive because it infringes Community law, in so far as it declared
the action brought by the Ente per le Ville Vesuviane admissible,
taking the view that
the latter was directly concerned as
provided for in the fourth paragraph of Article 230 EC. The
applicant argues that according to current Community law,
where, as in the present case, there is an act addressed to a
Member State which is given discretion as to whether the effects
of the act will have repercussions on the applicant, the decision
in question cannot be considered to be of direct concern to the
latter, irrespective of whether or not the applicant was a ‘benefi-
ciary’ of Community funds.

Action brought on 1 October 2007 — Commission of the
European Communities v Italian Republic

(Case C-447/07)

(2007/C 297/41)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: G. Rozet and L. Pignataro-Nolin, acting as Agents)

Defendant: Italian Republic

Form of order sought

The applicant claims that the Court should:

— declare that, by laying down in its legislation that Italian citi-
zenship is required for the posts of master or first officer
(second-in-command) on all vessels flying the Italian flag,
the Italian Republic has failed to fulfil its obligations under
Article 39 EC;

— order the Italian Republic to pay the costs of the proceed-

ings.

Pleas in law and main arguments

The Commission claims that the Italian legislation laying down
that Italian citizenship is required for the posts of master or
second-in-command on all vessels flying the Italian flag does
not comply with Article 39 EC, which enshrines the principle of
freedom of movement for workers, as interpreted by the Court.

In two cases concerning, respectively, the posts of master and
second-in-command of merchant ships flying the Spanish flag
(Case C-405/01) and the post of master of vessels engaged in
small-scale maritime shipping (‘Kleine Seeschifffahrt’), and in the
specific case of German-flagged fishing vessels carrying on
small-scale maritime fishing (Case C-47/02), the Court made
clear, in its judgments of 30 September 2003, the proper inter-
pretation of Article 39 EC.

The Commission observes that,
in the course of the present
procedure, the Italian authorities have not put forward any argu-
ments which differ from those put forward at the time in Case
C-405/01 (in which the Italian Republic intervened) or those
which the French authorities supported in Case C-47/02. Those
arguments were rejected by the Court
in its judgments of
30 September 2003.

C 297/26

EN

Official Journal of the European Union

8.12.2007

intention of

The Commission confines itself to pointing out that the Italian
authorities, in their reply to the reasoned opinion of 22 May
2007, do not deny the infringement. They actually stated
Italian
their
citizenship for appointment to the post of master or first officer
(second-in-command), undertaking to inform the Commission
of
the consultations between the Ministries
concerned.

the outcome of

requirement of

repealing

the

the Italian legislation laying down that

The Commission has received no information on the timetable
for the amendment of the Italian legislation. Consequently,
it
submits that
Italian
citizenship is required for the posts of master or second-in-
command on all vessels flying the Italian flag does not comply
with Article 39 EC, which enshrines the principle of freedom of
movement for workers, as interpreted by the Court.

Reference for a preliminary ruling from the Tribunale
Amministrativo Regionale del Lazio (Italy)
lodged on
3 October 2007 — Roche Spa v Agenzia Italiana del
Farmaco (AIFA), Ministero della Salute

(Case C-450/07)

(2007/C 297/42)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale del Lazio

Parties to the main proceedings

Applicant: Roche Spa

Defendants: Agenzia Italiana del Farmaco (AIFA), Ministero della
Salute

Questions referred

1. After the provisions contained in Articles 2 and 3 [of Direc-
tive 89/105/EEC] which modulate the relationship between
the public authorities of a Member State and the pharmaceu-
tical companies — by allowing the pricing of a medicinal
product or the raising of its price to be determined on the
basis of information provided by the [latter], but only in so
far as is acceptable to the competent authority, and thus on
the basis of dialogue between the undertakings themselves
and the authorities competent to supervise pharmaceutical
expenditure — Article 4(1) [of that Directive] concerning
‘price freeze[s] imposed on all medicinal products or on certain cate-
gories of medicinal products’ characterises a price freeze as a
instrument, the continuing use of which is condi-
general

to announce what

tional upon a review which must be carried out, at least
once a year, with reference to the macro-economic condi-
tions existing in the Member State in question. That provi-
sion allows the competent authorities a period of 90 days in
which to take a final decision, requiring them, on expiry of
that period,
increases or decreases in
prices are being made, if any. On a proper construction of
the reference to ‘decreases in prices … being made,
if any’, is
that provision to be interpreted as meaning that, as well as
the general remedy of freezing the prices of all categories, or
certain specific categories, of medicinal product, another
general remedy may be applied in the form of a reduction in
the prices of all categories, and of certain specific categories,
of medicinal product, or must ‘decreases …, if any’ be inter-
preted as referring exclusively to the medicinal products
which are already subject to the price freeze?

2. In requiring the competent authorities of a Member State to
verify, at least once a year,
in the case of price freezes,
whether the macroeconomic conditions justify continuing
that price freeze, may Article 4(1) [of Directive 89/105/EEC]
be interpreted as meaning that, if the reply to Question I is
that a price reduction is permissible, it is possible to have
recourse to such a measure even more than once in the
course of a single year, and to do that again for many years
(from 2002 until 2010)?

3. Under the terms of Article 4 [of Directive 89/105/EEC] —
read in the light of the preamble emphasising that the prin-
cipal aim of measures controlling the prices of medicinal
products is ‘the promotion of public health by ensuring the avail-
ability of adequate supplies of medicinal products at a reasonable
cost’ and preventing ‘disparities in such measures [which] may
hinder or distort intra-Community trade in medicinal products’ —
is it compatible with the Community rules to adopt measures
which refer to economic values attributed to that expenditure
on the basis of ‘predictions’ rather than values which have
been ‘ascertained’ (this question relates to both situations)?

4. Must the requirements relating to compliance with the ceil-
ings for pharmaceutical expenditure which each Member
State is competent to determine be linked, point by point, to
pharmaceutical expenditure alone, or is it within the powers
of the Member States to take account also of data relating to
other health expenditure?

5. Must

the principles,

to be inferred from … Directive
[89/105/EEC], of transparency and of shared participation
on the part of the undertakings with an interest in measures
freezing the prices of pharmaceutical products or reducing
them across the board be interpreted as requiring provision
to be made, always and in any circumstances, for the possibi-
lity of derogation from the price imposed (Article 4(2) [of
Directive 89/105/EEC]) and for genuine participation by the
applicant company, with the consequent need for the admin-
istrative authorities to state the reasons for any refusal?