CELEX: C1999/174/20
Language: en
Date: 1999-06-19 00:00:00
Title: Case T-75/99: Action brought on 15 March 1999 by Eli Lilly and Company Ltd against the Commission of the European Communities

19.6.1999              EN                     Official Journal of the European Communities                                         C 174/9
The applicant association concludes its arguments by asserting           The applicant raises the following pleas in law:
that insufficient reasons have been given for the requirement
that the aid in issue be repaid, and that this infringes the             — infringement of an essential procedural requirement in
principles of proportionality, the protection of legitimate                   that the contested regulation has provided no or at least
expectations, equal treatment and the prohibition of arbitrari-               no clear legal basis and/or that the joinder of two legal
ness.                                                                         bases results in a breach of the essential procedural
                                                                              requirements laid down in Directive 70/524/EEG; (2)
                                                                         — manifest error of assessment on the part of the Council in
                                                                              the application of Article 3(a)(e) of Directive 70/524/EEC;
                                                                         — infringement by the Council of fundamental principles of
                                                                              law forming part of the Community legal order, such as the
Action brought on 11 March 1999 by Alpharma Inc.                              proportionality principle, the principle of the protection of
          against the Council of the European Union                           legitimate expectations and the right to be heard and,
                                                                              finally;
                         (Case T-70/99)
                                                                         — insufficient reasoning for the contested regulation and,
                                                                              consequently, infringement by the Council of Article 190
                        (1999/C 174/19)                                       of the EC Treaty.
                   (Language of the case: English)                       (1) See also pending Case T-13/99 Pfizer Animal Health v Councilnot
                                                                             yet published in the OJ.
                                                                         (2) Council Directive of 23 November 1970 concerning additives in
An action against the Council of the European Union was                      feedingstuffs, OJ L 270, 14.12.1970, p. 1.
brought before the Court of First Instance of the European
Communities on 11 March 1999 by Alpharma Inc., Fort Lee
(the United States of America) represented by Mr. Gavin
Robert, London, and Mr. Bemard Van de Walle de Ghelcke,
Brussels, with an address for service in Luxembourg at the
Chambers of Loesch & Wolter, 11, Rue Goethe, Luxembourg.
                                                                         Action brought on 15 March 1999 by Eli Lilly and
The applicant claims that the Court should:                              Company Ltd against the Commission of the European
                                                                                                     Communities
— annul Council Regulation (EC) No 2821/98 of 17 Decem-
    ber 1998 amending, as regards withdrawal of the authoris-                                       (Case T-75/99)
    ation of certain antibiotics, Directive 70/524/EC concern-
    ing additives in feedingstuffs; or                                                             (1999/C 174/20)
— annul Council Regulation (EC) No 2821/98 in so far as it
    relates to withdrawal of authorisation of bacitracin zinc;                               (Language of the case: English)
    and
                                                                         An action against the Commission of the European Communi-
— order the Council to pay the costs.                                    ties was brought before the Court of First Instance of the
                                                                         European Communities on 15 March 1999 by Eli Lilly and
                                                                         Company Ltd, represented by Denis Waelbroeck and Dirk
Pleas in law and main arguments                                          Brinckman, with an address for service in Luxembourg at the
                                                                         Chambers of Arendt & Medernach, B.P. 39, L-2010.
The applicant, a company incorporated under the laws of the
State of Delaware and established in the United States of                The applicant claims that the Court should:
America, produces an antibiotic feed additive called bacitracin
zinc, in formulations appropriate for use as an antimicrobial            — declare, pursuant to Article 175 of the EC Treaty that, in
growth promoter in animals. The applicant is the only                         breach of Article 176 of the EC Treaty, the Commission
manufacturer and the most important supplier of bacitracin                    has failed to take the necessary measures to comply with
zinc in the EEA and markets its additive, which is produced in                the judgment of the Court of First Instance of 25 June
Norway, under the trade name Albac.                                           1998 in Case T-120/96 (Lilly Industries Ltd v Commission);
                                                                         — order the Commission to pay compensation of ECU
The contested regulation(1) withdraws the autorisation to use                 2.6 million, in accordance with Articles 178 and 215,
and market bacitracin zinc as an additive in animal feeding-                  second paragraph, of the EC Treaty, for the material and
stuffs with effect from 30 June 1999. Banning bacitracine zinc                non-material damage suffered by the applicant as a result
was found to be a necessary safeguard pending further                         of the Commission’s failure to act;
comprehensive evidence as to the possibility of antibiotic
resistance and the assessment of the risk of transfer from               — order the Commission to pay compensation of ECU 1 000
animals to humans. Such transfer of resistance would reduce                   per day from the date of the judgment in the present case
the effectiveness of bacitracin zinc used as a human medicinal                to the date until such time as the Commission has taken
product. Three other products, spiramycin, virginiamycin and                  the measures necessary in order to comply with the
tylosin phosphate, were banned at the same time. The ban is                   judgment of the Court of First Instance in Case T-120/96;
to be reviewed no later than 31 December 2000.                                and
 ---pagebreak--- C 174/10              EN                     Official Journal of the European Communities                                       19.6.1999
— order the Commission to bear the costs of the present                 The applicant claims that the Court should:
     proceedings.
                                                                        1. annul Commission Regulation (EC) No 590/99 of
                                                                             18 March 1999 supplementing the Annex to Commission
                                                                             Regulation (EC) No 1107/96 on the registration of geo-
Pleas in law and main arguments                                              graphical indications and designations of origin under the
                                                                             procedure laid down in Article 17 of Regulation (EEC)
                                                                             No 2081/92, in so far as the designation ‘Spreewälder
In its judgment in Case T-120/96, (1) the Court of First Instance            Gurken’ is concerned;
annulled the Commission’s decision of 22 May 1996, rejecting
the request for inclusion of somidobove in Annex II to Council          2. order the defendant to pay the recoverable costs of the
Regulation (EEC) No 2377/90 laying down a Community                          proceedings.
procedure for the establishment of maximum residue limits of
veterinary medicinal products in foodstuffs of animal origin. (2)
                                                                        Pleas in law and main arguments
Following that judgment, the Commission, in breach of its
obligations under Article 176 EC, has failed to submit the              The applicant produces tinned cucumbers in accordance with
draft regulation including somidobove in Annex II to the                recipes which have been used for centuries in the Spreewald
abovementioned regulation to the Adaptation Committee.                  area. The seat of the applicant’s undertaking is located some
                                                                        40 to 50 km to the west of that area.
According to the applicant, no margin of discretion is left to
the Commission in this case, so that it is under an obligation          The applicant states that the designation ‘Spreewälder Gurken’
to draw up a draft regulation including somidobove in Annex II          has been included by the contested regulation in the annex to
and to submit it to the Adaptation Committee for approval.              Regulation (EC) No 1107/96 in accordance with Regulation
                                                                        (EEC) No 2081/92 on the protection of geographical indi-
                                                                        cations and designations of origin for agricultural products
Furthermore, on the basis of the case-law of the Court of               and foodstuffs (1). The contested regulation has the effect of
Justice, measures giving effect to a judgment annulling an act          henceforth prohibiting the use of the word ‘Spreewald’ where
of an institution must be taken within a reasonable time. More          the criteria laid down in that regulation are not fulfilled.
than seven months have elapsed since the judgment in Case
T-120/96 was delivered and the defendant institution has still          In the applicant’s view, the contested regulation is character-
failed to take any measure to comply with it, and has,                  ised, in particular, by the fact that it ignores all the legal and
moreover, publicly announced its unwillingness to do so.                factual circumstances and constitutes a dubious manoeuvre
                                                                        prompted by politically and economically motivated machi-
                                                                        nations (‘cliquish intrigues’) on the part of the Justice Ministry
(1) Judgment of 25 June 1998 in Case T-120/96 Lilly Industries Ltd      of the Federal Republic of Germany, which ultimately rec-
    v Commission of the European Communities [1998] ECR II-2573.        ommended to the Commission that the contested regulation
(2) OJ 1990 L 224, p. 1.                                                be adopted.
                                                                        The applicant complains of infringement of essential pro-
                                                                        cedural requirements in relation to the enactment of the
                                                                        contested regulation, especially as regards the application of
                                                                        the simplified procedure under Article 17 of Regulation (EEC)
                                                                        No 2081/92, which is inappropriate in the case of ‘Spreewälder
                                                                        Gurken’, the curtailment of legal remedies connected therewith
                                                                        and failure to observe the six-month time-limit laid down in
                                                                        Article 17 of Regulation (EEC) No 2081/92.
Action brought on 1 April 1999 by Jütro Konservenfabrik
GmbH & Co. KG against the Commission of the European                    The applicant further maintains that the contested regulation
                           Communities                                  is incompatible with Article 2 of Regulation (EEC) No 2081/92
                                                                        as regards the protection of geographical indications and/or
                                                                        designations of origin. Moreover, no provision has been made
                          (Case T-76/99)                                in the contested regulation for transitional arrangements to be
                                                                        applicable in the Federal Republic of Germany, as required in
                                                                        principle by Article 13(2) of Regulation (EEC) No 2081/92.
                         (1999/C 174/21)
                                                                        In addition, the applicant complains of a misuse of discretion-
                                                                        ary powers with regard to the demarcation of the ‘Spreewald
                  (Language of the case: German)                        economic area’, which has been artificially delimited and, in
                                                                        particular, incorrectly defined. The discretion conferred on the
                                                                        Community legislature in the definition of geographical areas
An action against the Commission of the European Communi-               is not properly exercised where the geographic delimitation is
ties was brought before the Court of First Instance of the              based — as it is in the present case — on extraneous
European Communities on 1 April 1997 by Jütro Konservenfa-              considerations such as political and economic needs. Further-
brik GmbH & Co. KG, of Jüterbog (Germany), represented by               more, to define a ‘Spreewald economic area’, having nothing
Rolf Schultz-Süchting, Rechtsanwalt, of Messrs Boesebeek                whatever to do with the ‘Spreewald’ geographical region,
Droste, Hamburg, with an address for service in Luxembourg              instead of defining that region itself, which is well-known in
at the Chambers of Messrs Arendt & Medernach, 8-10 Rue                  commercial circles, amounts to an incorrect exercise of
Mathias Hardt.                                                          discretion.