Case C-428/08: Reference for a preliminary ruling from the Rechtbank 's-Gravenhage (Netherlands) lodged on 29 September 2008 — Monsanto Technology LLC v 1. Cefetra BV, 2. Cefetra Feed Service BV, 3. Cefetra Futures BV, and 4. State of Argentina and Miguel Santiago Campos, acting in his capacity as Secretary of State for Agriculture, Animal Husbandry, Fisheries and Food, and Monsanto Technology LLC v 1. Vopak Agencies Rotterdam BV, and 2. Alfred C. Toepfer International GmbH
Date: 2008-09-24
Institutions: Court of Justice
Subjects: DNA, Netherlands, biotechnology, genetic engineering, innovation, interpretation of the law, soya bean

C 313/16

EN

Official Journal of the European Union

6.12.2008

Action brought on 24 September 2008 — Commission of
the European Communities v Italian Republic

(Case C-423/08)

(2008/C 313/23)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Aresu and A. Caeiros, acting as Agents)

Defendant: Italian Republic

Form of order sought

own

— declare that the Italian Republic has failed to fulfil its obliga-
tions under Articles 2, 6, 9, 10 and 11 of Council Regu-
lation (EEC, Euratom) No 1552/89 of 29 May 1989
implementing Decision 88/376/EEC on the system of the
resources (1), Council Regulation
Communities'
(EC, Euratom) No 1150/2000 of 22 May 2000 imple-
menting Decision 94/728/EC, Euratom on the system of the
Communities' own resources (2), and Article 220 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 estab-
lishing the Community Customs Code (3), owing to failure
to comply with the time-limits for entry of the Commu-
nities' own resources in the event of subsequent recovery
and consequent delay in the payment of the same to the
Communities;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

subsequent

in the event of

The Commission complains that the Italian authorities failed to
recovery of customs
comply,
resources, with the time-limits for entry of the own resources
laid down by the relevant Community rules applicable, in so far
as those authorities grant an extension (of sixty days) to taxable
persons for the purposes of consultation of the minutes relating
to the challenge before calculating the import duties, with the
result that delays are caused to the crediting of the Commu-
nities' own resources in question. That instance emerged during
an inspection of own resources carried out in Italy from 6 to
10 November 2000.

According to the Commission, that operating practice is incom-
patible with the Community provisions in force concerning
subsequent recovery. In fact, the conditions for verification of
the duties are satisfied as soon as the national authorities draw
up the minutes in which the amount of
the duties to be
collected is communicated to the taxable person, since that

document indicates at the same time the name of the debtor
and the amount of the duties to be collected. In so far as in Italy
duties are verified and registered only on expiry of the time-
limit granted to taxable persons for challenging the correction
of
rules
concerned are inconsistent with the relevant Community provi-
sions, and may give rise to delays, in the present case so far as
concerns the date on which the Communities' own resources
are made available.

the duties communicated to them,

the national

(1) OJ L 155, p. 1.
(2) OJ L 130, p. 1.
(3) OJ L 302, p. 1.

Reference for a preliminary ruling from the Rechtbank
's-Gravenhage (Netherlands) lodged on 29 September 2008
— Monsanto Technology LLC v 1. Cefetra BV, 2. Cefetra
Feed Service BV, 3. Cefetra Futures BV, and 4. State of
Argentina and Miguel Santiago Campos, acting in his capa-
for Agriculture, Animal
city as Secretary of State
Husbandry, Fisheries and Food, and Monsanto Technology
LLC v 1. Vopak Agencies Rotterdam BV, and 2. Alfred C.
Toepfer International GmbH

(Case C-428/08)

(2008/C 313/24)

Language of the case: Dutch

Referring court

Rechtbank 's-Gravenhage

Parties to the main proceedings

Applicant: Monsanto Technology LLC

Defendants:

1. Cefetra BV,

2. Cefetra Feed Service BV,

3. Cefetra Futures BV,

4. State of Argentina and Miguel Santiago Campos, acting in
his capacity as Secretary of State for Agriculture, Animal
Husbandry, Fisheries and Food

6.12.2008

EN

Official Journal of the European Union

C 313/17

Applicant: Monsanto Technology LLC

Defendants:

1. Vopak Agencies Rotterdam BV,

2. Alfred C. Toepfer International GmbH

Questions referred

1. Must Article 9 of Directive 98/44/EC (1) of the European
Parliament and of the Council of 6 July 1998 on the legal
protection of biotechnological
inventions be interpreted as
meaning that the protection provided under that article can
be invoked even in a situation such as that in the present
proceedings, in which the product (the DNA sequence) forms
part of a material imported into the European Union (soy
meal) and does not perform its function at the time of the
alleged infringement, but has indeed performed its function
(in the soy plant) or would possibly again be able to perform
its function after it has been isolated from that material and
inserted into the cell of an organism?

2. Proceeding on the basis that the DNA sequence described in
claim 6 of patent no EP 0 546 090 is present in the soy
meal
imported into the Community by Cefetra and ACTI,
and that the DNA is incorporated in the soy meal for the
purposes of Article 9 of Directive 98/44 and that it does not
perform its function therein:

does the protection of a patent on biological material as
in particular Article 9,
provided for by Directive 98/44,
preclude the national patent
legislation from offering (in
parallel) absolute protection to the product (the DNA) as
such, regardless of whether that DNA performs its function,
and must the protection as provided under Article 9 of the
Directive therefore be deemed to be exhaustive in the situa-
tion referred to in that article, in which the product consists
of genetic information or contains such information, and the
product
is incorporated in material which contains the
genetic information?

3. Does it make any difference, for the purpose of answering
the previous question, that patent no EP 0 546 090 was
applied for and granted (on 19 June 1996) prior to the adop-
tion of Directive 98/44 and that such absolute product
legislation
protection was granted under national patent
prior to the adoption of that directive?

4. Is it possible, in answering the previous questions, to take
into consideration the TRIPS Agreement, in particular Arti-
cles 27 and 30 thereof?

(1) OJ 1998 L 213, p. 13.

Appeal brought on 1 October 2008 by Luigi Marcuccio
against the judgment delivered on 9 July 2008 in Joined
Cases T-296/05 and T-408/05 Marcuccio v Commission

(Case C-432/08 P)

(2008/C 313/25)

Language of the case: Italian

Parties

Appellant: Luigi Marcuccio (represented by: G. Cipressa, avvo-
cato)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— 1. In any event:

(1.a) annul the judgment under appeal in its entirety;

(1.b) declare that both the pending actions are fully admis-

sible;

and in addition:

reimbursement of

the defendant, by way of

— 2/A., primarily, grant the forms of order sought by the
applicant at first instance, that is to say: (2/A.1) annul the
in so far as necessary,
contested decisions; (2/A.2) annul,
(2/A.3)
both decisions dismissing the claims in question;
order
the
amount of the medical costs incurred by the applicant and
referred to in the claims in question seeking 100 % reimbur-
sement, or by way of compensation for the damage resulting
from the unlawful conduct of the defendant, to pay to the
applicant sums equal to EUR 2 572,32 (two thousand five
hundred and seventy two point three two) and EUR 381,04
(three hundred and eight one point zero four), or greater or
lesser sums than those stated above as the Court deems fair
and equitable; (2/A.4) order the defendant to pay the appli-
cant default interest on the sums stated above in point 2/A.3
of this appeal, in the amount to be capitalised on the start
and end date in accordance with what is stated in the case-
files; (2/A.5) order the defendant to pay the applicant's costs
relating to this appeal and also to the pending cases;

or