CELEX: C2003/213/14
Language: en
Date: 2003-09-06 00:00:00
Title: Case C-198/03 P: Appeal brought on 12 May 2003 by the Commission of the European Communities against the judgment delivered on 26 February 2003 by the Second Chamber of the Court of First Instance of the European Communities in Joined Cases T-344/00 and T-345/00 between CEVA Santé animale SA and Pharmacia Entreprises SA, supported by Fédération européenne de la santé animale (Fedesa), and the Commission of the European Communities

C 213/8                EN                        Official Journal of the European Union                                           6.9.2003
in the dispute between Dr Georg Friedrich Baur Jr., executor of                 resources required to deliver the special reference quantity
the estate of Dr Georg Friedrich Baur Sr. and Hauptzollamt                      to the lessor before 1 July 1994, had ceased milk
Kiel on the following questions:                                                production and only resumed such production four
                                                                                months later, before 1 July 1994 at least, by means of
                                                                                other production resources both of its own and taken on
1.    Is Article 3a(1) (second indent) (b) of Council Regulation                lease?
      (EEC) No 857/84 (1) of 31 March 1984 adopting general
      rules for the application of the levy referred to in
      Article 5c of Regulation (EEC) No 804/68 (2) in the                (1 ) OJ L 90 of 01.04.1984, p. 13.
      milk and milk products sector, as amended by Council               (2 ) English special edition...: Series-I 68(I) p. 176.
      Regulation (EEC) No 1639/91 ( 3) of 13 June 1991, to be            (3 ) OJ L 150 of 15.06.1991, p. 35.
      construed as permitting a special reference quantity to be
      allocated provisionally to a formerly non-marketing
      holding which, as a result of its having switched in
      the meantime to the production of other agricultural
      products, was — at the time of its request for the
      allocation — able to produce the reference quantity
      requested only by means of production resources (feed-
      crop areas, cows and other production resources)
      additionally leased for that specific purpose?
                                                                         Appeal brought on 12 May 2003 by the Commission of
                                                                         the European Communities against the judgment deliver-
2.    On a proper construction of the second sentence of                 ed on 26 February 2003 by the Second Chamber of the
      the second subparagraph of Article 3a(4) of Council                Court of First Instance of the European Communities in
      Regulation (EEC) No 857/84 of 31 March 1984 adopting               Joined Cases T-344/00 and T-345/00 between CEVA Santé
      general rules for the application of the levy referred to in       animale SA and Pharmacia Entreprises SA, supported by
      Article 5c of Regulation (EEC) No 804/68 in the milk and           Fédération européenne de la santé animale (Fedesa), and
      milk products sector, as amended by Council Regulation                   the Commission of the European Communities (1)
      (EEC) No 1639/91 of 13 June 1991, was the special
      reference quantity that had been definitively allocated
      also to be returned to the national reserve where the                                         (Case C-198/03 P)
      formerly non-marketing holding as defined in Question 1
      had received and could deliver the special reference
      quantity provisionally allocated to it only by means of                                        (2003/C 213/14)
      production resources (feed-crop areas, cows and other
      production resources) additionally leased for that specific
      purpose and where that holding had surrendered those
      leased production resources to the lessor before 1 July
      1994?                                                              An appeal against the judgment delivered on 26 February
                                                                         2003 by the Second Chamber of the Court of First Instance of
                                                                         the European Communities in Joined Cases T-344/00 and
                                                                         T-345/00 between CEVA Santé animale SA and Pharmacia
3.    If Question 2 is answered in the negative:                         Entreprises SA, supported by Fédération européenne de la
                                                                         santé animale (Fedesa), and the Commission of the European
      On a proper construction of the second subparagraph of             Communities was brought before the Court of Justice of the
      Article 3a(4) of Council Regulation (EEC) No 857/84 of             European Communities on 12 May 2003 by the Commission
      31 March 1984 adopting general rules for the application           of the European Communities, represented by T. Christoforou
      of the levy referred to in Article 5c of Regulation (EEC)          and M. Shotter, acting as agents, with an address for service in
      No 804/68 in the milk and milk products sector, as                 Luxembourg.
      amended by Council Regulation (EEC) No 1639/91 of
      13 June 1991, was the special reference quantity that had
      been definitively allocated also to be returned to the             The Applicant claims that the Court should:
      national reserve where the formerly non-marketing hold-
      ing had definitively abandoned enjoyment of the pro-
      duction resources required to deliver the special reference        —      set aside the judgment of the Court of First Instance
      quantity before 1 July 1994?                                              (Second Chamber) of 26 February 2003 in Joined Cases
                                                                                T-344/00 and T-345/00 as regards the actions for
                                                                                damages;
4.    If Question 3 is answered in the affirmative:
                                                                         —      rule on the substance of the applications for damages by
                                                                                dismissing them entirely as unfounded;
      Is definitive abandonment for the purposes of Question 3
      to be understood as meaning that the formerly non-
      marketing holding had returned the leased production               —      order the applicants to pay the Commission’s costs.
 ---pagebreak--- 6.9.2003               EN                         Official Journal of the European Union                                             C 213/9
Pleas in law and main arguments                                           attempt to clarify the scientific and political complexities of
                                                                          this case as soon as possible, always keeping in mind the
                                                                          fundamental objective of protecting public health. The CFI’s
                                                                          findings can also be considered to be insufficiently motivated.
(1)    Error in the interpretation and application of Regulation
       2377/90 ( 2) and, in particular, Article 14 thereof
                                                                          (4) Error in the interpretation and application of
                                                                                 Article 228 EC concerning the non-contractual liability
The findings of the CFI rest clearly on the interpretation that                  of the Community
Article 14 of Regulation 2377/90 gives the applicants an
enforceable right to have a decision taken on their applications          The Commission submits that the CFI committed two basic
before January 2000 and, secondly, imposes on the Com-                    legal errors. First, it failed to take into account the degree of
mission an absolute obligation to act by completing the                   discretion enjoyed by the Commission in these cases and held
scientific evaluation and by taking a final decision in all               without proper consideration that the alleged breach of the
applications concerning substances already in use in the                  principle of sound administration was ‘clear and serious’.
Member States on the date of entry into force of the Regulation           Second, it misinterpreted the provisions of Regulation 2377/
before 1 January 2000, or, failing this, to arrange for a                 90 and its relationship with other provisions of community
deferral of that deadline. The Commission submits that this               law, in particular directives 81/851 (3) and 96/22 (4), by
interpretation is a fundamental error of law that permeates the           accepting causality between the alleged damage and the
entire reasoning on which the CFI’s judgment is based.                    Commission’s ‘inaction’.
                                                                          (5)      Finally, the Commission submits that the CFI made an
                                                                          error in law in finding that the Commission is liable for
(2)    Errors of law in the interpretation and application of the         damages to Pharmacia by failing to take into account its
       principle of sound administration                                  different position compared with the position of the applicant
                                                                          Ceva.
It is submitted that the characterisation of the Commission’s
inaction by the CFI as being such that it gave rise to damages            (1 ) OJ C 45, 10/02/2001, p. 19.
for a clear and serious breach of the principle of sound                  (2 ) Council Regulation (EEC) no 2377/90 of 26 June 1990 laying
administration is based on the following errors regarding the                  down a Community procedure for the establishment of maximum
interpretation and application of that principle:                              residue limits of veterinary medicinal products in foodstuffs of
                                                                               animal origin OJ L 224, 18/08/1990, p. 1.
                                                                          (3 ) Council Directive 81/851/EEC of 28 September 1981 on the
—     failure to assess the time taken in relation to the different            approximation of the laws of the Member States relating to
      procedural stages involved;                                              veterinary medicinal products OJ L 317, 06/11/1981, p. 1.
                                                                          (4 ) Council Directive 96/22/EC of 29 April 1996 concerning the
                                                                               prohibition on the use in stockfarming of certain substances
—     failure to give due weight to the complexity of the                      having a hormonal or thyrostatic action and of ß-agonists, and
      progesterone file in assessing the time taken by the                     repealing Directives 81/602/EEC, 88/146/EEC and 88/299/EEC
      Commission;                                                              OJ L 125, 23/05/1996, p. 3.
—     placing undue emphasis on the time limit found in
      Article 14 of Regulation 2377/90 and its relation to the
      principle of sound administration;
—     failure to take due account of the balancing of interests
      that the Commission had to undertake.                               Reference for a preliminary ruling by the VAT and Duties
                                                                          Tribunals, Manchester Tribunal Centre, by direction of
                                                                          that court dated 16 May 2003, in the case of University
                                                                          of Huddersfield Higher Education Corporation against
                                                                                       Commissioners of Customs and Excise
(3)    Misconstrual of the evidence and inadequate reasoning
                                                                                                     (Case C-223/03)
The Commission submits that the CFI fundamentally miscon-
strued the factual and scientific record, in the sense that the                                      (2003/C 213/15)
claimed ‘inaction’ of the Commission to place progesterone in
one of the annexes to Regulation 2377/90 before 1 January
2000 was fully justified by the prevailing circumstances of this
case and the undisputed scientific uncertainty and the potential          Reference has been made to the Court of Justice of the
for abuse of progesterone. Far from staying inactive, the                 European Communities by a direction of the VAT and Duties
Commission has been taking a number of concrete steps in its              Tribunals, Manchester Tribunal Centre, dated 16 May 2003,