CELEX: C1997/199/74
Language: en
Date: 1997-06-28 00:00:00
Title: Action brought on 15 April 1997 by Pierre Tomarchio against the Court of Auditors of the European Communities (Case T-113/97)

No C 199/28          EN                 Official Journal of the European Communities                                  28 . 6 . 97
Pleas in law and main arguments adduced in support:                Fifth, the Commission misused its powers by basing its
                                                                   decision on irrelevant considerations and motives of a
                                                                   political nature .
The applicant, a company incorporated under the laws of
Delaware, USA, has developed a veterinary medicinal
product called Sometribove which is classified as a                Finally, the Commission's decision infringed a number of
Recombinant Bovine Somatotrophin ( BST). Prior to                  agreements approved by the European Community under
marketing this product, the applicant was required to              the Final Act of the Uruguay Round of multilateral trade
obtain a marketing authorization from the EC Committee             negotiations . The Commission's decision is capable of
for Veterinary Medicinal Products ( CVMP). Before such             being reviewed against these standards and such a review
an authorization was obtained, Council Regulation ( EEC )          indicates that the decision itself is incompatible with the
No 2377/90 was adopted, establishing a Community                   terms of the GATT 1994 and the Agreement on the
procedure for the setting of minimum residue limits                Application of Sanitary and Phytosanitary Measures .
( MRLs ) for veterinary medicinal products in foodstuffs of
animal origin.
After the adoption of this Regulation, it became necessary
for the applicant to obtain a listing of Sometribove under
one of the Annexes to Council Regulation No 2377/90                Action brought on 15 April 1997 by Pierre Tomarchio
before a marketing authorization could be approved. An             against the Court of Auditors of the European
application for an MRL was made by the applicant                                                Communities
through the procedure established under that regulation .
By decision of 14 January 1997, the Commission rejected                                      ( Case T-l 13/97
the applicant's request that its case should be referred to                                    ( 97/C 199/74 )
the Committee for the Adaptation to Technical Progress
on the grounds that, by virtue of Council Decision 94/936/
EC, the marketing and administration of BST to dairy                               (Language of the case: French)
cows could not be authorized and that, therefore, the
applicant had no interest in obtaining an MRL. The
moratorium introduced by Council Decision 94/936/EC                An action against the Court of Auditors of the European
was the principal ground for the Commission 's arriving at         Communities was brought before the Court of First
its decision .
                                                                   Instance of the European Communities on 15 April 1997
                                                                   by Pierre Tomarchio, residing in Luxembourg, represented
                                                                   by Nicolas Lhoest, of the Brussels Bar, with an address for
The applicant claims the Commission decision should be             service in Luxembourg at the offices of Fiduciaire Myson
annulled on the following grounds:                                 Sari, 30 Rue de Cessange .
First, the Commission infringed the proper Community               The applicant claims that the Court should:
procedure for setting MRLs when it rejected the
applicant's case for inclusion of Sometribove in one of the
Annexes to Council Regulation No 2377/90 .                         — annul the decision of 21 June 1996 rejecting the
                                                                        applicant's request that consideration be given to the
                                                                        possible application of Article 31 ( 2 ) of the Staff
Second, in so deciding, the Commission in fact acted in a
                                                                        Regulations,
manner inconsistent with the principles of the
moratorium . In particular, the decision prevents the
applicant from conducting limited practical tests on the
                                                                   — annul, in so far as may be necessary, the decision of
effects of BST products .
                                                                        27 December 1996 rejecting the applicant's complaint,
Third, the applicant maintains that, in arriving at its
decision, the Commission infringed the principle of legal          — order the defendant to pay all the costs .
certainty, which in turn infringed the applicant's legitimate
expectation that the conditions for the granting of an
MRL would be based on a scientific assessment of the                Pleas in law and main arguments adduced in support:
product .
                                                                   The pleas in law and main arguments are the same as in
Fourth, the Commission infringed the principle of                   Case T-l 6/97 ( M.
 proportionality when adopting the present decision . The
 interference with the applicant's commercial activities as a       (') OJ No C 74, 8 . 3 . 1997, p . 27.
 result of the Commission's decision is disproportionate to
 any benefit that might be achieved by refusing to approve
the product under one of the Annexes referred to above .