Case C-563/08: Reference for a preliminary ruling from the Juzgado Contencioso-Administrativo de Granada (Spain) lodged on 18 December 2008 — Carlos Sáez Sánchez and Patricia Rueda Vargas v Junta de Andalucía and Manuel Jalón Morente and Others, co-defendants
Date: 2008-12-18
Institutions: Court of Justice
Subjects: Spain, interpretation of the law, medicinal product, pharmaceutical legislation, pharmaceutical product, pharmacy, stock

21.3.2009

EN

Official Journal of the European Union

C 69/21

Reference for a preliminary ruling from the Juzgado
Contencioso-Administrativo de Granada (Spain) lodged on
18 December 2008 — Carlos Sáez Sánchez and Patricia
Jalón
Rueda Vargas v Junta de Andalucía and Manuel

Morente and Others, co-defendants

— in the alternative, refer the case back to the Court of First

Instance for a fresh decision;

— order the respondent to pay the costs.

(Case C-563/08)

(2009/C 69/37)

Language of the case: Spanish

Referring court

Juzgado Contencioso-Administrativo de Granada

Parties to the main proceedings

Applicants: Carlos Sáez Sánchez and Patricia Rueda Vargas

Defendants: Junta de Andalucía and Manuel Jalón Morente and
Others

Question referred

Are Articles 2.3 and 2.4 of State Law 16/1997 of 25 April on
pharmaceutical services, in so far as they define territorial and
demographic limits on the opening of pharmacies, contrary to
Article 43 of the Treaty establishing the European Economic
Community,
in that they constitute a disproportionate, even
counterproductive, system for limiting the number of pharma-
cies, in terms of the objective of the proper provision of medi-
cines in the relevant territory?

Appeal brought on 18 December 2008 by SGL Carbon AG
against the judgment of the Court of First Instance (Fifth
Chamber) delivered on 8 October 2008 in Case T-68/04
the European
SGL Carbon AG v Commission of

Communities

(Case C-564/08 P)

(2009/C 69/38)

Language of the case: German

Parties

Appellant: SGL Carbon AG (represented by: M. Klusmann and K.
Beckmann, Rechtsanwälte)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— set aside the judgment of the Court of First Instance of the
European Communities (Fifth Chamber) of 8 October 2008
in Case T-68/04 SGL Carbon AG v Commission;

Grounds of appeal and main arguments

The subject-matter of this appeal is the judgment of the Court
of First Instance, which dismissed the appellant's action against
Commission Decision 2004/420/EC of 3 December 2003
relating to a cartel on the market for electrical and mechanical
carbon and graphite products.

The appellant relies on two grounds in support of its appeal,
alleging that the Court of First Instance infringed Community
law and made a procedural error.

By its first ground of appeal the appellant submits that the
Court of First Instance erred in law by failing to have regard to
its submission at first instance that turnover which was internal
to the group of affiliated companies had wrongly been included
in the market volumes used to establish the amounts on which
the fine was based. It also submits that the substantively exces-
sive nature of the amount on which the fine established in
respect of the appellant was based is an infringement of the
principle of non-discrimination and the principle of proportion-
ality as well as an infringement of Article 253 EC.

By its second ground of appeal, the appellant submits that the
Court of First
Instance made an error of assessment, and
exceeded the scope of its discretion, in establishing the amount
on which the appellant's fine was based. The Court of First
Instance thus also infringed the principle of non-discrimination
and the principle of proportionality. It is submitted that the
Court of First Instance departed, without any legal basis, from
its own case-law, to the detriment of the appellant, as regards
the issue of the permissibility of a flat-rate for fines according to
market share categories. Whereas the Court of First Instance had
regarded market share categories or ‘portions’ with a margin of
fluctuation of 5 % as appropriate in similar earlier judgments, it
based its decision in the present case on market share categories
of 10 %, to the significant detriment of the appellant as an
undertaking which is grouped at the bottom end of its category.

Reference for a preliminary ruling from the Rechtbank
Assen (Netherlands)
lodged on 22 December 2008 —
1. Combinatie Spijker Infrabouw/De Jonge Konstruktie;
2. Van Spijker Infrabouw B.V.; 3. De Jonge Konstruktie B.V.
v Provincie Drenthe

(Case C-568/08)

(2009/C 69/39)

Language of the case: Dutch

— reduce, as appropriate, the amount of the fine imposed on
the appellant in Article 2 of the contested Commission deci-
sion of 3 December 2003;

Referring court

Rechtbank Assen