CELEX: C2003/101/30
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-53/03: Reference for a preliminary ruling by the Epitropi Antagonismou by order of that Court of 22 January 2003 in the case of Sinetairismos Farmakopion Aitolias & Akarnanias — SIFAIT and Others against GLAXOWELLCOME AEVE (subsequently called GLAXOSMITHKLINE AEVE)

C 101/18                 EN                            Official Journal of the European Union                                         26.4.2003
        fishing are actually complied with. The data on overfish-              Reference for a preliminary ruling by the Epitropi Anta-
        ing mentioned above make it clear that the Spanish                     gonismou by order of that Court of 22 January 2003
        authorities have not effectively implemented the control               in the case of Sinetairismos Farmakopion Aitolias &
        measures necessary to protect against overfishing, in                  Akarnanias — SIFAIT and Others against GLAXOWELL-
        particular fishing in the absence of a quota, specifically             COME AEVE (subsequently called GLAXOSMITHKLINE
        through adequate inspection of landings and recording                                                AEVE)
        of catches and landings.
                                                                                                        (Case C-53/03)
—       Infringement of Article 11(2) of Regulation (EEC)
        No 2241/87 and Article 21(2) of Regulation (EEC)
        No 2847/93: Spain did not monitor thoroughly enough
        the information that it received on catches and how they                                       (2003/C 101/30)
        evolved and therefore fishing of the stocks referred to in
        the reasoned opinions relating to the fishing years
        1990 and 1997 was prohibited too late once the relevant
        quotas had already been exceeded.
                                                                               Reference has been made to the Court of Justice of the
        Compliance with quotas is an absolute obligation, breach               European Communities by order of the Epitropi Antago-
        of which is not dependent on any proof that other                      nismou (Competition Commission) of 22 January 2003,
        Member States have suffered harm or that the conser-                   received at the Court Registry on 5 February 2003, for a
        vation objectives pursued have been jeopardised by                     preliminary ruling in the case of Sinetairismos Farmakopion
        endangering the relevant stocks.                                       Aitolias & Akarnanias — SIFAIT and Others against GLAXO-
                                                                               WELLCOME AEVE (subsequently called GLAXOSMITHKLINE
                                                                               AEVE) on the following questions:
—       Infringement of Article 1(2) of Regulation (EEC) No 2241/
        87 and Article 31 of Regulation (EEC) No 2847/93:                      1.   Where the refusal of an undertaking holding a dominant
        the Spanish authorities did not supply appropriate or                       position to meet fully the orders sent to it by pharmaceuti-
        persuasive data on any legal action taken against those
                                                                                    cal wholesalers is due to its intention to limit their export
        responsible for exceeding fishing quotas or for catches                     activity and, thereby, the harm caused to it by parallel
        made in the absence of a quota for cod and mackerel                         trade, does the refusal constitute per se an abuse within
        stocks in 1991, cod in 1992, cod in 1994, Greenland
                                                                                    the meaning of Article 82 EC? Is the answer to that
        halibut and redfish in 1995 and ‘other species’ in 1996.                    question affected by the fact that the parallel trade is
                                                                                    particularly profitable for the wholesalers because of the
                                                                                    different prices, resulting from State intervention, in the
                                                                                    Member States of the European Union, that is to say by
                                                                                    the fact that pure conditions of competition do not
( 1) Council Regulation (EEC) No 170/83 of 25 January 1983                          prevail in the pharmaceuticals market, but a regime which
     establishing a Community system for the conservation and                       is governed to a large extent by State intervention? Is it
     management of fishery resources (OJ L 24 of 27.1.1983, p. 1).                  ultimately the duty of a national competition authority
( 2) Council Regulation (EEC) No 3760/92 of 20 December 1992                        to apply Community competition rules in the same way
     establishing a Community system for fisheries and aquaculture
     (OJ L 389 of 31.12.1992, p. 1).
                                                                                    to markets which function competitively and those in
( 3) Council Regulation (EEC) No 2241/87 of 23 July 1987 estab-
                                                                                    which competition is distorted by State intervention?
     lishing certain control measures for fishing activities (OJ L 207 of
     29.7.1987, p. 1).
( 4) Council Regulation (EEC) No 2847/93 of 12 October 1993                    2.   If the Court holds that limitation of parallel trade, for the
     establishing a control system applicable to the common fisheries               reasons set out above, does not constitute an abusive
     policy (OJ L 261 of 20.10.1993, p. 1).                                         practice in every case where it is engaged in by an
( 5) On the basis of the information officially provided by Spain: in               undertaking holding a dominant position, how is possible
     1990, overfishing totalling 1 186,6 tonnes; in 1991, overfishing               abuse to be assessed? In particular:
     totalling 1 728 tonnes; in 1992, overfishing totalling 2 196 tonn-
     es; in 1993, overfishing totalling 179 tonnes; in 1994, overfishing
     totalling 378 tonnes; in 1995, overfishing totalling 3 209 tonnes
     and 528 tonnes in the absence of a quota; in 1996, overfishing                 2.1. Do the percentage by which normal domestic
     totalling 39 tonnes and 23 tonnes in the absence of a quota; in                      consumption is exceeded and/or the loss suffered
     1997, overfishing amounting to 72 tonnes.                                            by an undertaking holding a dominant position
                                                                                          compared with its total turnover and total profits
                                                                                          constitute appropriate criteria? If so, how are the
                                                                                          level of that percentage and the level of that loss
                                                                                          determined (the latter as a percentage of turnover
                                                                                          and total profits), above which the conduct in
                                                                                          question may be abusive?
 ---pagebreak--- 26.4.2003              EN                        Official Journal of the European Union                                           C 101/19
      2.2. Is an approach entailing the balancing of interests           Action brought on 14 February 2003 by the Commission
            appropriate, and, if so, what are the interests to be        of the European Communities against the United
            compared? In particular:                                            Kingdom of Great Britain and Northern Ireland
            (a)  is the answer affected by the fact that the
                 ultimate consumer/patient derives limited                                          (Case C-62/03)
                 financial advantage from the parallel trade and
                                                                                                   (2003/C 101/32)
            (b)  is account to be taken, and to what extent, of
                 the interests of social insurance bodies in
                 cheaper medicinal products?
      2.3. What other criteria and approaches are considered             An action against the United Kingdom of Great Britain and
            appropriate in the present case?                             Northern Ireland was brought before the Court of Justice of
                                                                         the European Communities on 14 February 2003 by the
                                                                         Commission of the European Communities, represented by
                                                                         X. Lewis and M. Konstantinidis, acting as agents, with an
                                                                         address for service in Luxembourg.
Action brought on 14 February 2003 by the Commission
                                                                         The Applicant claims that the Court should:
of the European Communities against the United
      Kingdom of Great Britain and Northern Ireland
                                                                         1)    declare that, by failing to adopt all the measures necessary
                                                                               to comply with its obligations under Articles 1(a), 1(e),
                          (Case C-61/03)
                                                                               1(f), 2(1)(b), 3, 4, 5, 7, 8, 12, 13 and 14 of Council
                                                                               Directive 75/442/EEC of 15 July 1975 on waste ( 1), as
                         (2003/C 101/31)                                       amended by Council Directive 91/156/EEC of 18 March
                                                                               1991 ( 2), the United Kingdom of Great Britain and
                                                                               Northern Ireland has failed to fulfil its obligations under
An action against the United Kingdom of Great Britain and                      the Directive and under the Treaty establishing the
Northern Ireland was brought before the Court of Justice of                    European Community;
the European Communities on 14 February 2003 by the
Commission of the European Communities, represented by                   2)    order the United Kingdom of Great Britain and Northern
L. Ström and X. Lewis, acting as agents, with an address for                   Ireland to pay the costs.
service in Luxembourg.
The Applicant claims that the Court should:
                                                                         Pleas in law and main arguments
—     declare that the United Kingdom of Great Britain and
      Northern Ireland has failed to fulfil its obligations under
      Article 37 of the Euratom Treaty by failing to provide the         Directive 91/156/EEC required Member States to bring into
      Commission with general data relating to any plan for              force such laws, regulations and administrative provisions as
      the disposal of radioactive waste in whatever form                 are necessary to comply with that directive no later than
      resulting from the decommissioning operations of the               1 April 1993, and to inform the Commission forthwith.
      JASON reactor; and                                                 Article 2(2) thereof provides that Member States shall commu-
                                                                         nicate to the Commission the texts of the main provisions of
—     order the United Kingdom of Great Britain and Northern             national law that they adopt in the field governed by the
      Ireland to pay the costs.                                          directive.
Pleas in law and main arguments                                          As a result of an assessment of the national legislation
                                                                         communicated as transposing the directive the Commission
                                                                         found a number of inconsistencies and gaps in the United
The Commission is of the opinion that the United Kingdom                 Kingdom’s transposition and concludes that Articles 1(a), 1(e),
has failed to fulfil its obligations under Article 37 of the             1(f), 2(1)(b), 3, 4, 5, 7, 8, 12, 13 and 14 of the directive have
Euratom Treaty to provide the Commission with general data               not been correctly transposed into the United Kingdom
relating to any plan for the disposal of radioactive waste in            legislation.
whatever form resulting from the decommissioning operations
of the JASON reactor, thus making it impossible for the
Commission to determine whether the implementation of                    (1 ) OJ L 194, 25.7.1975, p. 39.
such a plan is liable to result in the radioactive contamination         (2 ) OJ L 78, 26.3.1991, p. 32.
of the water, soil or airspace of another Member State.