CELEX: C1996/318/25
Language: en
Date: 1996-10-26 00:00:00
Title: Action brought on 1 August 1996 by Lilly Industries Ltd against the Commission of the European Communities (Case T-120/96)

No C 318 / 12         EN                 Official Journal of the European Communities                                    26 . 10 . 96
Regulation (EEC ) No 2423/88 , by the institutions' refusal to      — order the Commission to pay the costs .
use the applicant's profit margin in computing the
applicant's constructed normal value . Rather, the
institutions have used the profit margin which they                 Pleas in law and main arguments adduced in support
computed for other producers . The refusal in question is to
be considered as a result of several arbitrary or illogical         The applicant is the developer of a veterinary medicinal
determinations, such as:                                            product called Optiflex 640, which is a recombinant bovine
                                                                    somatotrophin ( BST ) used for administration to dairy cows
                                                                    as a productivity aid to milk production. Owing to the fact
— the determination that the profit margin on a company's           that this is a product derived from biotechnology, it is
    profitable domestic sales in the exporting country              subject to the procedure for marketing authorization laid
    cannot be used to compute the company's constructed             down in Council Directive 87/22/EEC and also to the
    normal value if such company's profitable domestic              Community procedure for establishing maximum residue
    sales represent less than 10% in volume ( but not               limits ( MRLs ) of veterinary medicinal products in
    turnover ) of its total domestic sales,
                                                                    foodstuffs of animal origin laid down in Regulation ( EEC )
                                                                    No 2377/90 ('the Regulation '). Member States are not to
— the determination that the applicant's cost of production         authorize the placing on the market of a veterinary
    should be increased by percentage points (to such an            medicinal product unless, inter alia, the active substance
    extent that, as a result, the applicant's profitable            capable of pharmacological action is mentioned in Annex I
    domestic sales happened to represent slightly less than         ( substances in respect of which MRLs have been
    10% in volume — but not turnover — of its total                 established ), II ( substances in respect of which it is not
    domestic sales ) on arbitrary and illogical grounds .           necessary for the protection of public health to establish an
                                                                    MRL ) or III ( substances in respect of which a provisional
The institutions have also infringed Article 2 ( 3 ) of Council     MRL is applicable ) to the Regulation .
Regulation ( EEC ) No 2423/88 in refusing to apply the
' OEM adjustment' in the determination of the applicant's           The applicant challenges in the present case the refusal by
constructed normal value . Even though, according to the            the Commission to add BST to the products figuring in
applicant, the substantive conditions for the application of        Annex II, and submits that the contested decision should be
the ' OEM adjustment' were met, the institutions have               annulled on the following grounds :
confused the ' OEM adjustment', which they are required to
make pursuant to Article 2 ( 3 ), with a claim for allowances       — Infringement of the Community procedure for the
under Article 2 ( 10 ) of Regulation ( EEC ) No 2423/88 .               establishment of MLRs, as laid down in Article 6 of the
                                                                        Regulation .
                                                                        The Commission 's decision was based on confusion
                                                                         between the concept of MRLs and marketing
                                                                        authorizations and on an incorrect interpretation of the
                                                                         Council Decision imposing a moratorium on BST. There
                                                                        is nothing in the Regulation to suggest that the
Action brought on 1 August 1996 by Lilly Industries Ltd                 establishment of an MRL is subject to the condition that
  against the Commission of the European Communities                    the substance will immediately benefit from a marketing
                       ( Case T-120/96 )                                authorization, so that an MRL could be obtained for
                          96/C 318/25 )                                 products which, purely provisionally, may not be placed
                                                                         on the market owing to the existence of a moratorium.
                                                                        The applicant stresses in this regard that some uses of
               (Language of the case: English)                           BST are still possible even now and that there is therefore
                                                                        already a need to establish an MRL.
An action against the Commission of the European
Communities was brought before the Court of First                   — Misuse of powers and breach of the principle of legal
Instance of the European Communities on 1 August 1996 by                certainty.
Lilly Industries Ltd, represented by Denis Waelbroeck, of
the Brussels Bar, of Liedekerke Wolters Waelbroeck &                    The contested decision runs counter to the assurances
Kirkpatrick, 3 boulevard de PEmpereur, Brussels, with an                given in the past that the Commission would apply solely
address for service in Luxembourg at the offices of Arendt &            traditional criteria of safety, quality and efficacy in
Medernach, boite postale 39, L-2010 Luxembourg.                         assessing veterinary products in the biotechnology
                                                                         sector, to the assurances specifically given to the
                                                                         applicant that an MRL would soon be established for
The applicant claims that the Court should :                             Somidobove and to the conditions prescribed in the
                                                                         Regulation, inasmuch as the defendant was not entitled
— annul the Commission Decision of 22 May 1996                          to refuse to grant an MRL for reasons other than the
    concerning a definition of a position, in accordance with            safety of the product.
    Article 175 of the EC Treaty, on the inclusion of bovine
    somatotrophin in Annex II to Council Regulation ( EEC )         — Infringement of Article 2 of the Council Decision
    No 2377/90 ,                                                        amending Decision 90/218/EEC, concerning the placing
 ---pagebreak--- 26 . 10 . 96           EN                  Official Journal of the European Communities                               No C 318 / 13
    on the market and administration of BST ('the                     Pleas in law and main arguments adduced in support
    moratorium') and breach of the principle of
     proportionality .                                                On 1 December 1995 the Commission adopted Regulation
                                                                      ( EEC ) No 2781 /95 on the transport for the free supply to
    The latest renewal of the moratorium on BST expressly             Georgia, Armenia, Azerbaijan and Tajikistan of rye
     permits Member States to 'carry out limited practical            flour .
     tests on the use of bovine somatotrophin'. Furthermore,
     the moratorium nowhere prohibits the placing on the              The transport of one of the lots was awarded to the
     market of products obtained from tested animals . It is          applicant. Annexed to the award was a schedule of 10 points
     solely concerned with BST and not with the sale of               containing extracts from the agreement between the
     foodstuffs obtained from treated animals . It appears de         European Community and the Georgian authorities . After
     facto disproportionate to inhibit the ability of academic        delivery the Commission sent to the applicant a statement of
     institutions to obtain free access, for the purpose of           account which concerned, inter alia, costs of dispatch to be
     clinical trials, to a product whose use in animals is            paid to the Georgian authorities . The applicant objects that
     recognized scientifically as harmless to humans, and to          no reference is made anywhere to the dispatch rate, not even
     require healthy animals to be sacrificed in such a               in the award and in the memorandum concerning the
     situation .                                                      abovementioned agreement. The applicant therefore
                                                                      considers that the costs of dispatch do not have to be paid to
— Infringement of the Final Act embodying the results                 the Georgian authorities and protests against a number of
     of the Uruguay Round of Multilateral Trade                       decisions in which those costs are stated to be for its
     Negotiations .                                                   account .
     In the applicant's view, the Commission's decision
     refusing to proceed with the inclusion of BST in Annex II
     to the Regulation may seriously affect non-EC producers
     who request an authorization to place on the market
     foodstuffs from animals treated with BST.
                                                                      Action brought on 8 August 1996 by Service pour le
                                                                      groupement d'acquisitions ( SGA ) against the Commission
                                                                                      of the European Communities
                                                                                             ( Case T-123 /96 )
                                                                                               ( 96/C 318 /27 )
Action brought on 2 August 1996 by Mutual Aid
Administration Services NV against the Commission of the                              (Language of the case: French)
                     European Communities
                        ( Case T-121 /96 )                            An action against the Commission of the European
                          ( 96/C 318/26 )                             Communities was brought before the Court of First
                                                                      Instance of the European Communities on 8 August 1 996 by
                 (Language of the case: Dutch)                        Service pour le groupement d'acquisitions ( SGA ),
                                                                      established at Istres ( France ), represented by Jean Claude
                                                                      Fourgoux, of the Paris Bar, with an address for service in
An action against the Commission of the European                      Luxembourg at the Chambers of Pierrot Schiltz, 4 rue
Communities was brought before the Court of First                     Beatrix de Bourbon .
Instance of the European Communities on 2 August 1 996 by
Mutual Aid Administration Services NV, of Antwerp
( Belgium ), represented by J. Tritsmans, of the Antwerp Bar,         The applicant claims that the Court should :
with an address for service in Luxembourg at the Chambers
of R. Faltz, 6 rue Heinrich Heine .                                   — annul the Commission 's decision notified to SGA on
                                                                          5 Tune 1996 not to investigate the complaint lodged on
                                                                          4 July 1994 ,
The applicant claims that the Court should :
                                                                      — declare, in accordance with Article 215 of the EC Treaty,
— annul the contested decision(s ), a copy of which is                    that the Commission has incurred non-contractual
     included in the documents annexed to the application,
                                                                          liability and caused SGA damage which must be made
     and consequently hold that the applicant is not obliged
                                                                          good, and, as a consequence, award SGA the sum of
     to pay the costs of dispatch to the Georgian
                                                                           ECU 360 000 by way of compensation,
     authorities,
— order the Commission of the European Communities to                 — order the Commission to pay the costs .
     proceed to repay to the applicant the sum of US$
     21 967,19 together with interest, calculated at the               Pleas in law and main arguments adduced in support
     current statutory rate in Belgium of 8 % per annum,
      since 30 July 1996 ,                                             SGA operates as an intermediary in the distribution of all
                                                                       makes of automobiles, undertaking parallel imports solely
— order the Commission to pay the costs .                              as agent for the final consumer, in accordance with