CELEX: C2003/146/49
Language: en
Date: 2003-06-21 00:00:00
Title: Case C-156/03 P: Appeal brought on 4 April 2003 by the Commission of the European Communities against the judgment delivered on 28 January 2003 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in case T-147/00 between Les Laboratoires Servier and the Commission of the European Communities

21.6.2003                EN                        Official Journal of the European Union                                            C 146/29
The Applicant claims that the Court should:                                The Appellant claims that the Court should:
1.    declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with               —     annul the judgment issued by the Court of First Instance
      Council Directive 1999/36/EC of 29 April 1999 on                           of 28 January 2003 in case T-147/00, Servier;
      transportable pressure equipment ( 1) and Commission
      Directive 2001/2/EC of 4 January 2001 adapting the
      latter directive to technical progress ( 2), or in any event         —     order the defendants to pay the costs.
      by failing to notify those provisions to it, Ireland has
      failed to fulfil its obligations under the Directives;
2.    order Ireland to pay the costs of this action.
                                                                           Pleas in law and main arguments
Pleas in law and main arguments
                                                                           a)    Fundamental misinterpretation of the division of powers
Article 249 EC, under which a directive shall be binding, as to                  First, the appellant submits that it is clear from the
the result to be achieved, upon each Member State, carries by                    assessment in the contested judgment that the Court
implication an obligation on the Member States to observe the                    of First Instance has fundamentally misinterpreted the
period for compliance laid down in the directive. That period                    division of powers between the Community and the
expired on 1 December 2000 and 1 July 2001 respectively                          Member States in relation to harmonisation as regards
without Ireland having enacted the provisions necessary to                       medicinal products for human use in general and to
comply with the directives referred to in the conclusions of                     Chapter III of Directive 75/319 ( 2) in particular.
the Commission.
                                                                                 The Court of First Instance takes the view, referring to
                                                                                 the judgment in T-74/00, Artegodan and others, that
( 1) OJ L 138, 1.6.1999, p. 20.                                                  Chapter III of Directive 75/319 provides both for ‘exclus-
( 2) OJ L 5, 10.1.2001, p. 4.                                                    ive competence of the Member States’ and for ‘exclusive
                                                                                 competence of the Commission’ and that it is therefore
                                                                                 necessary to determine whether there has been a ‘[transfer
                                                                                 of] competence from the Member States concerned to
                                                                                 the Community’.
                                                                                 In taking this stance, the Court of First Instance fails
                                                                                 to understand that the various provisions making up
Appeal brought on 4 April 2003 by the Commission of the                          Chapter III of Directive 75/319, including Articles 12 and
European Communities against the judgment delivered on                           15a, which are particularly at issue here, are all based on
28 January 2003 by the Second Chamber (Extended                                  a system of powers shared between the Member States
Composition) of the Court of First Instance of the                               and the Community. Chapter III thus gives Member States
European Communities in case T-147/00 between Les                                the right to initiate certain procedures for granting,
Laboratoires Servier and the Commission of the European                          varying or withdrawing marketing authorisations, and
                             Communities                                         lays on the Community, represented by the Commission,
                                                                                 a duty to achieve harmonisation by way of decisions
                                                                                 which the Member States are then required to implement.
                          (Case C-156/03 P)
                                                                           b)    Legal assessment based on a Commission decision which
                           (2003/C 146/49)                                       was not the subject of the dispute
                                                                                 Still by way of a preliminary submission, the appellant
                                                                                 would point out that the Commission decision
An appeal against the judgment delivered on 28 January 2003                      (C(2000)573) of 9 March 2000 (the ‘2000 decision’)
by the Second Chamber (Extended Composition) of the Court                        which was the subject of the appeal at first instance, is
of First Instance of the European Communities in case T-147/                     based on Article 15a(1) of Directive 75/319. However, it
00 (1) between Les Laboratoires Servier and the Commission                       must be noted that, rather than directly and specifically
of the European Communities, was brought before the Court                        interpreting this legal basis, the Court of First Instance
of Justice of the European Communities on 4 April 2003 by                        confines itself to examining Commission decision
the Commission of the European Communities, represented                          C(96)3608 final/1 of 9 December 1996 (the ‘1996
by R. Wainwright and H. Støvlbæk, acting as agents, with an                      decision’) and other provisions of Directive 75/319 in
address for service in Luxembourg.                                               order to interpret Article 15a by pure deduction.
 ---pagebreak--- C 146/30                EN                          Official Journal of the European Union                                        21.6.2003
       The Court of First Instance’s assessment in the contested            The applicant claims that the Court should:
       judgment relates exclusively to the Commission decision
       of 1996, although this decision is manifestly not the
       instrument contested at first instance.                              1.   annul, in the following calls for applications:
       It is clear that Article 12 of Directive 75/319, on which
       the 1996 decision is based, and which is examined by the                  —    call for applications for the position of Data-
       Court of First Instance, is not the legal basis for the 2000                   protection officer. Ref.: 03/EJ/07 (2003/C 34 A/01)
       decision.                                                                      OJ C 34 A of 13.2.2003;
       Moreover, Article 12 is essentially assessed by way of a
       comparison with Article 10(2) of Directive 75/319,
                                                                                 —    call for applications for the position of Legal officer.
       although the latter does not form the legal basis for the
                                                                                      Ref.: 03/EJ/11 (2003/C 34 A/05) OJ C 34 A of
       2000 decision either, or of the 1996 decision, examined
                                                                                      13.2.2003;
       by the Court of First Instance.
       Thus, the Court of First Instance’s conclusion that the
       Commission was not competent to adopt the 2000                            —    call for applications for the position of Press officer.
       decision is based on an assessment relating to a decision                      Ref.: 03/EJ/13 (2003/C 34 A/07) OJ C 34 A of
       which was not contested at first instance and is founded                       13.2.2003;
       essentially on provisions, namely Articles 10 and 12 of
       Directive 75/319, which do not form the legal basis for
       the 2000 decision. In the appellant’s view, this assessment               —    call for applications for the position of Secretary to
       constitutes in itself a failure to define the status of                        the General Administration. Ref.: 03/EJ/14 (2003/
       Article 15a(1) of Directive 75/319 and thus a failure to                       C 34 A/08) OJ C 34 A of 13.2.2003;
       take account of it.
       In the appellant’s view, the two errors described above                   —    call for applications for the position of Librarian/
       are fundamental and linked to the extent that they vitiate                     Archivist. Ref.: 03/EJ/12 (2003/C 34 A/06) OJ C 34
       the entire legal assessment leading the Court of First                         A of 13.2.2003;
       Instance to deduce that the Commission was not com-
       petent to adopt the 2000 decision.
                                                                                 —    call for applications for the position of Accounting
       Lastly, and solely in the alternative, the appellant main-                     officer. Ref.: 03/EJ/08 (2003/C 34 A/02) OJ C 34 A
       tains that the Court of First Instance’s reasoning to the                      of 13.2.2003;
       effect that Article 15a of Directive 75/319 does not cover
       marketing authorisations harmonised by way of the
       purely consultative procedure within the meaning of                       —    call for applications for the position of IT-informat-
       Articles 12 and 13 of the directive also constitutes a                         ics expert (webmaster) of the European judicial
       misinterpretation of that article.                                             network. Ref.: 03/EJ/09 (2003/C 34 A/03) OJ C 34 A
                                                                                      of 13.2.2003,
( 1) OJ C 247, 26.8.2000, p. 29.
( 2) Second Council Directive 75/319/EEC of 20 May 1975 on the
     approximation of provisions laid down by Law, Regulation or                 the paragraph referring to the documents to be submitted
     Administrative Action relating to proprietary medicinal products            in English by applicants submitting their application in
     (OJ L 147, 9.6.1975, p. 13).                                                another language; and the paragraphs relating to the
                                                                                 linguistic knowledge required of candidates, from each of
                                                                                 the calls for applications set out below:
                                                                                 —    in the call for applications for the position of Data-
                                                                                      protection officer, as condition No 17: ‘Excellent
Action brought on 8 April 2003 by Kingdom of Spain                                    knowledge of English and French. Ability to work in
                          against Eurojust                                            other European Union languages would be an asset’.
                          (Case C-160/03)                                        —    in the call for applications for the position of Law
                                                                                      officer, as condition No 19: ‘Excellent knowledge of
                          (2003/C 146/50)                                             English and French. Ability to work in other Euro-
                                                                                      pean Union languages would be an asset’.
An action against Eurojust was brought before the Court of                       —    in the call for applications for the position of Press
Justice of the European Communities on 8 April 2003 by the                            officer, as condition No 12: ‘Ability to speak at least
Kingdom of Spain, represented by L. Fraguas Gadea, with an                            English and French. Knowledge of other official
address for service in Luxembourg.                                                    European Union languages would be an asset’.