CELEX: C2002/180/17
Language: en
Date: 2002-07-27 00:00:00
Title: Case C-183/02 P: Appeal brought on 15 May 2002 against the judgment delivered on 6 March 2002 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-127/99, T-129/99 and T-148/99 (not yet published) between Territorio Histórico de Álava — Diputación Foral de Álava and Others and Commission of the European Communities

27.7.2002              EN                   Official Journal of the European Communities                                        C 180/9
Reference for a preliminary ruling by the Verwaltungsge-               1.    Must point 35 Germany-Austria (e)(i) of Parts A and B of
richt Braunschweig by order of that Court of 26 February                     Annex III to Regulation (EEC) No 1408/71 (1) be inter-
2002 in the administrative law proceedings brought by                        preted as requiring — in addition to entitlement to the
Schaper & Brümmer GmbH & Co KG against Bezirks-                              benefit on 1 January 1994 — also the taking up of
                    regierung Braunschweig                                   residence in Austria?
                          (Case C-84/02)
                                                                       2.    If so, are that provision and point C Germany (1) of
                        (2002/C 180/15)                                      Annex VI to Regulation (EEC) No 1408/71 compatible
                                                                             with higher-ranking European law, in particular the
Reference has been made to the Court of Justice of the                       requirement of freedom of movement under Article 39
European Communities by order of the Verwaltungsgericht                      EC in conjunction with Article 42 EC?
Braunschweig (Brunswick Administrative Court) of 26 Febru-
ary 2002, received at the Court Registry on 12 March 2002,
for a preliminary ruling in the administrative law proceedings         (1) OJ L 149, p. 2.
brought by Schaper & Brümmer GmbH & Co KG against
Bezirksregierung Braunschweig on the following question:
Is Council Directive 92/27/EEC (1) of 31 March 1992 on the
labelling of medicinal products for human use and on package
leaflets (OJ 1992 L 113, p. 8) in conjunction with Council
Directive 65/65/EEC (2) of 26 January 1965 on the approxi-
mation of provisions laid down by law, regulation or adminis-
trative action relating to proprietary medicinal products (OJ,         Appeal brought on 15 May 2002 against the judgment
English Special Edition, 1965-1966, p. 20) and the Second              delivered on 6 March 2002 by the Third Chamber,
Council Directive 75/319/EEC (3) of 20 May 1975 on the                 Extended Composition, of the Court of First Instance of
approximation of provisions laid down by law, regulation or            the European Communities in Joined Cases T-127/99,
administrative action relating to proprietary medicinal prod-          T-129/99 and T-148/99 (not yet published) between
ucts (OJ 1975 L 147, p. 13) or, in the alternative, the principle      Territorio Histórico de Álava — Diputación Foral de
of the free movement of goods (Article 28 EC), to be                   Álava and Others and Commission of the European
interpreted in such a way that Community law precludes                                             Communities
national legislation which requires the package leaflets —
which in other respects comply with Community law ‘of old
medicinal products’, that is to say products on the market for                                   (Case C-183/02 P)
a long time but for which the post-marketing authorisation
procedure is still pending, to include the following notice:
‘Dieses Arzneimittel ist nach den gesetzlichen Übergangs-                                        (2002/C 180/17)
vorschriften im Verkehr. Die behördliche Prüfung auf pharma-
zeutische Qualität, Wirksamkeit und Unbedenklichkeit ist
noch nicht abgeschlossen.’ (‘This medicinal product is market-
ed in accordance with the statutory transitional provisions.           An appeal against the judgment delivered on 6 March 2002
Official verification of the product’s pharmaceutical quality,         by the Third Chamber, Extended Composition, of the Court of
efficacy and safety has not yet been concluded.’)?                     First Instance of the European Communities in Joined Cases
                                                                       T-127/99, T-129/99 and T-148/99 between Territorio His-
(1) OJ L 113 of 30.04.1992, p. 8.                                      tórico de Álava — Diputación Foral de Álava and Others and
(2) OJ P 022 of 09.02.1965, p. 369.                                    Commission of the European Communities was brought
(3) OJ L 147 of 09.06.1975, p. 13.                                     before the Court of Justice of the European Communities on
                                                                       15 May 2002 by Daewoo Electronics Manufacturing España
                                                                       SA (DEMESA), represented by Antonio Creus Carreras and
                                                                       Begoña Uriarte Valiente, Abogados, of calle Velázquez No 63,
Reference for a preliminary ruling by the Bundessozial-                Madrid.
gericht by order of that Court of 30 January 2002 in the
case of Maria Purschke against Landesversicherungsan-
                        stalt Oberbayern
                                                                       The appellant claims that the Court should:
                         (Case C-156/02)
                        (2002/C 180/16)                                1.    declare the present appeal admissible and consequently:
Reference has been made to the Court of Justice of the                 2.    set aside the judgment of the Court of First Instance of
European Communities by order of the Bundessozialgericht                     6 March 2002;
(Federal Social Court) of 30 January 2002, received at the
Court Registry on 29 April 2002, for a preliminary ruling in           3.    itself give final judgment in the matter on the basis of the
the case of Maria Purschke against Landesversicherungsanstalt                appellant’s pleadings at first instance and, in particular,
Oberbayern (Regional Insurance Office for Oberbayern) on the                 annul Article 1(d) and Article 2 of the decision of the
following questions:                                                         Commission of 24 February 1999;
 ---pagebreak--- C 180/10                 EN                    Official Journal of the European Communities                                        27.7.2002
4.    in the alternative, refer the case back to the Court of First       —     Error in law, when applying Articles 87 and 88 EC and
      Instance for judgment, if the Court of Justice should deem                Article 1 of Council Regulation (EC) No 659/1999 of
      that appropriate;                                                         22 March 1999 laying down detailed rules for the
                                                                                application of Article 93 of the EC Treaty (1), for consider-
                                                                                ing that the tax credit is not existing aid, and lack of
                                                                                statement of reasons: in the event that the Court should
5.    order the Commission to pay the costs in both sets of                     take the view that the Commission’s criteria regarding tax
      proceedings.                                                              measures have changed, the tax credit constitutes existing
                                                                                aid.
                                                                          —     Error in law for not considering applicable the principle
                                                                                of legitimate expectations: when Demesa applied for and
                                                                                was granted the tax credit, it was evident that the
                                                                                Commission’s criteria for deciding whether tax measures
Pleas in law and main arguments                                                 constituted State aid were very different from the present
                                                                                criteria. Since that was the situation at the material time,
                                                                                it seems excessive for the Court of First Instance to require
                                                                                Demesa to take the step of verifying whether the tax
—     Error in law in applying Article 87 EC to the 45 % tax                    measure under the legislation applicable to it fulfilled
      credit on investment and lack of statement of reasons in                  the requirements laid down in Article 87 and should,
      the judgment with regard to that aspect:                                  therefore, be notified to the Commission. Not even the
                                                                                Commission was certain in that respect, given its failure
                                                                                to act with regard to the measure concerned.
      —     Discretion of the public authorities: at issue in the
            proceedings before the Court of First Instance was
                                                                          (1) OJ 1999 L 83.
            Norma Foral No 22/1994 specifically as applied to
            the undertaking Demesa rather than in general,
            which is the subject of another decision of the
            Commission on State aid and of another action for
            annulment. As may be inferred from the decision
            granting application of the tax credit to Demesa,
            which constituted the subject-matter of proceedings
            before the Court of First Instance, the Diputación
            Foral de Alava merely applies the provision as
            it stands, without imposing any conditions. The               Action brought on 17 May 2002 by Commission of the
            existence of prior authorisation of the public auth-              European Communities against Portuguese Republic
            orities is entirely logical and sought by the undertak-
            ings themselves. In fact, such prior oversight gives
            ample legal certainty to the undertakings covered by                                    (Case C-185/02)
            that provision, since it implies that Hacienda Foral
            (regional finance ministry) has approved the
            amounts invested, including assets, etc, instead of                                     (2002/C 180/18)
            the uncertainty which would be entailed by the
            automatic application of the tax incentive and the
            possible subsequent inspection.
                                                                          An action against the Portuguese Republic was brought before
                                                                          the Court of Justice of the European Communities on 17 May
      —     requirement to invest ESP 2 500 million: this                 2002 by the Commission of the European Communities,
            requirement does not make the measure selective,              represented by António Caeiros, acting as Agents, with an
            since it is applied objectively to all undertakings in        address for service in Luxembourg.
            all sectors which invest that amount and is not
            restricted to undertakings with considerable finan-
            cial resources.                                               The applicant claims that the Court should:
      Even if it were selective, the tax credit would still be            —     Declare that, by failing to notify the plans and projects
      justified by the nature or scheme of the system in that it                provided for in Article 11 of Council Directive 96/
      is not an exceptional measure but a provision of general                  59/EC (1) of 16 September 1996 on the disposal of
      scope which applies to any undertaking making an initial                  polychlorinated biphenyls and polychlorinated terphen-
      investment in Alava which fulfils the requisite conditions                yls (PCB/PCT) and the summary of inventories provided
      laid down in the legislation in issue; such conditions                    for in Article 4(1) of the directive, the Portuguese Republic
      cannot in any event be described as extraordinary or                      has failed to fulfil its obligations under those provisions;
      discriminatory.                                                           and