CELEX: C1998/378/24
Language: en
Date: 1998-12-05 00:00:00
Title: Action brought on 21 October 1998 by the Commission of the European Communities against Kingdom of Belgium (Case C-378/98)

C 378/14            EN                  Official Journal of the European Communities                                         5.12.98
   biotechnological inventions in order to achieve, in the                   the human body patentable. Such treatment of
   framework of the common market, one of the                                living human material as an object is unacceptable
   objectives of the Community Ð Article 235. A                              in the context of human dignity.
   procedure in which a qualified majority is sufficient
   was thus wrongly chosen for the adoption of Directive                Ð Violation of patients' right to self-determination:
   98/44/EC, when a procedure for which a unanimous                          Not the slightest provision is made as regards
   vote is prescribed was appropriate.                                       possible recipients of biotechnologically treated
                                                                             material, or at least material which has been
                                                                             obtained through the application of biotechnology.
Ð Infringement of the second paragraph of Article 3(b)                       This means that a patient may be treated with
   of the EC Treaty (the principle of subsidiarity) or,                      such material without his knowledge Ð and thus
   in the alternative, of the combined provisions of                         without his consent Ð even where, had he been
   Articles 3(b) and 190 of the EC Treaty: The patent                        made aware of it, he would have refused such
   laws of the Member States are almost completely                           treatment.
   harmonised following alignment with the European
   Patent Convention. The clarification of the protection
   of biotechnological inventions which is, according to           Ð Infringement of Article 100(a) taken together with
                                                                        Article 189b(2), of the EC Treaty: The activities of
   recital 4 in its preamble, the aim of Directive 98/44/
   EC should therefore ensue from the implementation of                 the Commission are governed by the principle of
   the European Patent Convention. It is thus an aim                    collegiality. The Commission's proposal, which was an
   eminently suitable for being achieved by the Member                  indispensable prerequisite for the contested Directive,
   States. Indeed, such an approach is preferable in view               should have been drawn up by the college of
                                                                        commissioners in the definitive text in which it was
   of the fact that the European Patent Convention
   applies also in States other than the Member States of               submitted to the European Parliament and the
   the European Union. Nor, thus, is it established that                Council, because it is an essential part of the
                                                                        Community legislative process. In view of the general
   this matter concerns a Community objective which, by
   reason of the scale or effects of the abovementioned                 scope of the measure adopted by the European
   action, can be better achieved by the Community, or                  Parliament and the Council on the basis of that
   in any event it is not clear from the statement of                   proposal, the text should also have been available for
   reasons for the contested measure that this is so.                   consideration by all the members of the college in all
                                                                        the official languages at the time when the
                                                                        Commission took its decision.
Ð Breach of the principle of legal certainty: The
   Netherlands Government takes the view that it is                (1) Directive 98/44/EC of the European Parliament and of the
   only to a limited extent that Directive 98/44/EC                    Council of 6 July 1998 on the legal protection of
   removes any uncertainty regarding the patenting of                  biotechnological inventions (OJ L 213, 30.7.1998, p. 13).
   biotechnological inventions, whereas it gives rise at the
   same time to new uncertainties.
Ð Breach of obligations under international law:
                                                                     Action brought on 21 October 1998 by the Commission
   Ð Notwithstanding Article 1(2) of Directive 98/44/                    of the European Communities against Kingdom of
       EC, Member States are denied the opportunity of                                          Belgium
       choosing whether or not to make use of the                                          (Case C-378/98)
       possibility of an exclusion under Article 27(3)(b)
       fo the TRIPS Agreement.                                                               (98/C 378/24)
   Ð Directive 98/44/EC was not drawn up in                        An action against the Kingdom of Belgium was brought
       accordance with the provisions of Article 2 of the          before the Court of Justice of the European Communities
       Agreement on Technical Barriers to Trade, or in             on 21 October 1998 by the Commission of the European
       any event it is not apparent from the statement of          Communities, represented by GeÂrard Rozet, Legal Adviser,
       reasons for the Directive that this was so.                 acting as Agent, with an address for service in
                                                                   Luxembourg at the office of Carlos Gómez de la Cruz,
   Ð Infringement of the European Patent Convention.               Wagner Centre, Kirchberg.
   Ð Infringement of the Convention on Biological                  The Commission of the European Communities claims
       Diversity.                                                  that the Court should:
                                                                   Ð declare that, by failing to adopt within the period
Ð Breach of fundamental rights:                                         prescribed the measures necessary to recover from the
                                                                        beneficiary undertakings the aid provided for under
   Ð Violation of human dignity: The human body is                      Maribel II/III scheme which was declared unlawful
       the bearer of human dignity. Under Directive 98/                 and incompatible with the common market by the
       44/EC, it will be possible to make isolated parts of             Commission's Decision of 4 December 1996, notified
 ---pagebreak--- 5.12.98              EN                   Official Journal of the European Communities                                   C 378/15
     to it on 20 December 1996, the Kingdom of Belgium               The applicant claims that the Court should:
     has failed to fulfil its obligations under the fourth
     paragraph of Article 189 of the EC Treaty and                   1. Declare that, by failing to adopt and bring into force
     Articles 2 and 3 of the said decision; and                          within the prescribed period the laws, regulations or
                                                                         administrative provisions necessary to comply with
Ð order the Kingdom of Belgium to pay the costs.                         Council Directive of 22 June 1994 on the protection
                                                                         of young persons at work (1), and/or by failing to
Pleas in law and main arguments adduced in support:                      inform the Commission thereof, the Italian Republic
                                                                         has failed to fulfil its obligations under the EC Treaty;
The action for annulment of the Commission's Decision of                 and
4 December 1996 (1) does not have a suspensive effect.
The only argument on which a Member State may rely in                2. Order the Italian Republic to pay the costs.
order not to comply with a decision ordering recovery of
aid unlawfully paid is that it is absolutely impossible for          Pleas in law and main arguments adduced in support:
the decision to be complied with correctly.
                                                                     Under Article 189 of the EC Treaty, according to which a
The Commission maintains, first, that, the Kingdom of                directive is to be binding, as to the result to be achieved,
Belgium has not truly complied with its duty to cooperate            upon each Member State to which it is addressed,
in good faith. Even although it had established contacts             Member States are required to observe the time-limits laid
with the Commission in order to explain the possible                 down in directives for their transposition. That time-limit
problems caused by the recovery of the aid unlawfully                expired on 22 June 1996 without the Italian Republic
paid out and to outline a proposal for staggered                     having brought into force the necessary provisions in
repayment, and even although the Commission had not                  order to comply with the directive referred to in the
objected to that proposal, the Kingdom of Belgium                    Commission's application.
suddenly took the step of abandoning the framework of
                                                                     (1) OJ L 216, 20.8.1994, p. 12.
cooperation with the Commission in good faith and of
arguing before the Court that it was absolutely impossible
for the decision to be complied with.
Second, the Commission maintains that the Kingdom of
Belgium has not made the slightest approach to the                          Removal from the register of Case C-51/98 (1)
undertakings in issue with a view to recovering the aid.
Third, it maintains that the Kingdom of Belgium has not                                       (98/C 378/26)
proposed any alternative means of implementing the
decision whereby the difficulties encountered could have             By order of 8 September 1998 the President of the Court
been resolved.                                                       of Justice of the European Communities has ordered the
                                                                     removal from the register of Case C-51/98 (reference for a
(1) Case C-75/97 (OJ C 131, 26.4.1997, p. 5).                        preliminary ruling from the Arbeitsgericht Wiesbaden):
                                                                     Urlaubs- und Lohnausgleichskasse der Bauwirtschaft v.
                                                                     Works in The World Srl.
                                                                     (1) OJ C 137, 2.5.1998.
Action brought on 26 October 1998 by the Commission
 of the European Communities against the Italian Republic
                       (Case C-385/98)
                        (98/C 378/25)                                      Removal from the register of Case C-255/98 (1)
                                                                                              (98/C 378/27)
An action against the Italian Republic was brought before
the Court of Justice of the European Communities on                  By order of 12 October 1998 the President of the Court of
26 October 1998 by the Commission of the European                    Justice of the European Communities has ordered the
Communities, represented by Pieter Jan Kuijper and                   removal from the register of Case C-255/98: Kingdom of
Antonio Aresu, Legal Advisers acting as Agents, with an              Spain v. Commission of the European Communities.
address for service in Luxembourg at the Office of Carlos
Gómez de la Cruz, Wagner Centre, Kirchberg.                          (1) OJ C 278, 5.9.1998.