CELEX: C2003/101/29
Language: en
Date: 2003-04-26 00:00:00
Title: Case C-42/03: Action brought on 4 February 2003 by the Commission of the European Communities against the Kingdom of Spain

26.4.2003              EN                        Official Journal of the European Union                                           C 101/17
Reference for a preliminary ruling by the Bundesgerichts-                            it in the fishing years 1990, 1991, 1992, 1993,
hofes by order of that Court of 17 December 2002 in the                              1994, 1995, 1996 and 1997;
appeal proceedings brought by Pharmacia & Upjohn S.p.A
                                                                               —     by having failed to ensure compliance with the
                          (Case C-31/03)
                                                                                     Community rules on conservation through adequate
                                                                                     monitoring of fishing activities and appropriate
                         (2003/C 101/28)                                             inspections of the fishing fleet and of landings and
                                                                                     recording of catches for the fishing years 1990,
                                                                                     1991, 1992, 1993, 1994, 1995, 1996 and 1997;
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesgerichtshofes                       —     by not having temporarily prohibited fishing from
(Federal Court) of 17 December 2002, received at the Court                           vessels flying the Spanish flag or registered in
Registry on 27 January 2003, for a preliminary ruling in the                         Spanish territory when the quotas allocated to
appeal proceedings brought by Pharmacia & Upjohn S.p.A on                            Spain were deemed to be exhausted in the fishing
the interpretation of Article 19(1) of Council Regulation (EEC)                      years 1990, 1991, 1992, 1993, 1994, 1995,
No 1768/92 of 18 June 1992 concerning the creation of a                              1996 and 1997 and by having finally prohibited it
supplementary protection certificate for medicinal products                          when the quotas had already been exceeded; and
(OJ 1992 L 182, p. 1; hereinafter ‘the Protection Certificate
Regulation’):
                                                                               —     by having failed to take legal or administrative action
                                                                                     against the master or other person responsible for
Is the grant of a supplementary protection certificate in a
                                                                                     overfishing in the fishing years 1990, 1991, 1992,
Member State of the Community on the basis of a medicinal                            1993, 1994, 1995, 1996 and 1997;
product for human beings authorised in that Member State
precluded by an authorisation to place the same product on
the market as a veterinary medicinal product granted in                        the Kingdom of Spain has failed to fulfil its obligations
another Member State of the Community before the date
                                                                               under Article 5(2) of Regulation (EEC) No 170/83 (1),
specified in Article 19(1) of the Protection Certificate Regu-
                                                                               Article 9(2) of Regulation (EEC) No 3760/92 (2), Article 1
lation, or is the sole determining factor the date on which the                and Article 11(1) and (2) of Regulation (EEC) No 2241/
product was authorised in the Community as a medicinal
                                                                               87 ( 3) and Article 2, Article 21(1) and (2) and Article 31
product for human beings?
                                                                               of Regulation (EEC) No 2847/93 ( 4);
                                                                         —     order the Kingdom of Spain to pay the costs.
Action brought on 4 February 2003 by the Commission
of the European Communities against the Kingdom of
                              Spain                                      Pleas in law and main arguments
                          (Case C-42/03)                                 —     Infringement of Article 5(2) of Regulation (EEC) No 170/
                                                                               83, Article 9(2) of Regulation (EEC) No 3760/92: those
                         (2003/C 101/29)                                       provisions impose a general obligation on Member
                                                                               States to determine, in accordance with the applicable
                                                                               Community law, detailed rules for the use of the fishing
                                                                               quotas allocated to them. The data on overfishing which
An action against the Kingdom of Spain was brought before                      are cited in the reasoned opinions sent to Spain give an
the Court of Justice of the European Communities on 4 Febru-                   overall picture of how often over a period of time and
ary 2003 by the Commission of the European Communities,                        how significantly the quotas were exceeded ( 5). They show
represented by T. van Rijn, Legal Adviser, and S. Pardo                        that the Kingdom of Spain has failed to fulfil its obligation
Quintillán, of its Legal Service, with an address for service in               to put in place, in accordance with the applicable
Luxembourg.                                                                    Community legislation, appropriate and effective
                                                                               measures for utilisation of the fishing quotas allocated to
                                                                               it for the fishing years 1990 to 1997.
The applicant claims that the Court of Justice should:
—     declare that:                                                      —     Infringement of Article 1(1) of Regulation (EEC) No 2241/
                                                                               87 and Article 2 of Regulation (EEC) No 2847/93: proper
      —    by having failed to determine the appropriate detail-               management of fishing quotas also calls for appropriate
           ed rules for the use of the fishing quotas allocated to             supervision and monitoring to ensure that restrictions on
 ---pagebreak--- C 101/18                 EN                            Official Journal of the European Union                                         26.4.2003
        fishing are actually complied with. The data on overfish-              Reference for a preliminary ruling by the Epitropi Anta-
        ing mentioned above make it clear that the Spanish                     gonismou by order of that Court of 22 January 2003
        authorities have not effectively implemented the control               in the case of Sinetairismos Farmakopion Aitolias &
        measures necessary to protect against overfishing, in                  Akarnanias — SIFAIT and Others against GLAXOWELL-
        particular fishing in the absence of a quota, specifically             COME AEVE (subsequently called GLAXOSMITHKLINE
        through adequate inspection of landings and recording                                                AEVE)
        of catches and landings.
                                                                                                        (Case C-53/03)
—       Infringement of Article 11(2) of Regulation (EEC)
        No 2241/87 and Article 21(2) of Regulation (EEC)
        No 2847/93: Spain did not monitor thoroughly enough
        the information that it received on catches and how they                                       (2003/C 101/30)
        evolved and therefore fishing of the stocks referred to in
        the reasoned opinions relating to the fishing years
        1990 and 1997 was prohibited too late once the relevant
        quotas had already been exceeded.
                                                                               Reference has been made to the Court of Justice of the
        Compliance with quotas is an absolute obligation, breach               European Communities by order of the Epitropi Antago-
        of which is not dependent on any proof that other                      nismou (Competition Commission) of 22 January 2003,
        Member States have suffered harm or that the conser-                   received at the Court Registry on 5 February 2003, for a
        vation objectives pursued have been jeopardised by                     preliminary ruling in the case of Sinetairismos Farmakopion
        endangering the relevant stocks.                                       Aitolias & Akarnanias — SIFAIT and Others against GLAXO-
                                                                               WELLCOME AEVE (subsequently called GLAXOSMITHKLINE
                                                                               AEVE) on the following questions:
—       Infringement of Article 1(2) of Regulation (EEC) No 2241/
        87 and Article 31 of Regulation (EEC) No 2847/93:                      1.   Where the refusal of an undertaking holding a dominant
        the Spanish authorities did not supply appropriate or                       position to meet fully the orders sent to it by pharmaceuti-
        persuasive data on any legal action taken against those
                                                                                    cal wholesalers is due to its intention to limit their export
        responsible for exceeding fishing quotas or for catches                     activity and, thereby, the harm caused to it by parallel
        made in the absence of a quota for cod and mackerel                         trade, does the refusal constitute per se an abuse within
        stocks in 1991, cod in 1992, cod in 1994, Greenland
                                                                                    the meaning of Article 82 EC? Is the answer to that
        halibut and redfish in 1995 and ‘other species’ in 1996.                    question affected by the fact that the parallel trade is
                                                                                    particularly profitable for the wholesalers because of the
                                                                                    different prices, resulting from State intervention, in the
                                                                                    Member States of the European Union, that is to say by
                                                                                    the fact that pure conditions of competition do not
( 1) Council Regulation (EEC) No 170/83 of 25 January 1983                          prevail in the pharmaceuticals market, but a regime which
     establishing a Community system for the conservation and                       is governed to a large extent by State intervention? Is it
     management of fishery resources (OJ L 24 of 27.1.1983, p. 1).                  ultimately the duty of a national competition authority
( 2) Council Regulation (EEC) No 3760/92 of 20 December 1992                        to apply Community competition rules in the same way
     establishing a Community system for fisheries and aquaculture
     (OJ L 389 of 31.12.1992, p. 1).
                                                                                    to markets which function competitively and those in
( 3) Council Regulation (EEC) No 2241/87 of 23 July 1987 estab-
                                                                                    which competition is distorted by State intervention?
     lishing certain control measures for fishing activities (OJ L 207 of
     29.7.1987, p. 1).
( 4) Council Regulation (EEC) No 2847/93 of 12 October 1993                    2.   If the Court holds that limitation of parallel trade, for the
     establishing a control system applicable to the common fisheries               reasons set out above, does not constitute an abusive
     policy (OJ L 261 of 20.10.1993, p. 1).                                         practice in every case where it is engaged in by an
( 5) On the basis of the information officially provided by Spain: in               undertaking holding a dominant position, how is possible
     1990, overfishing totalling 1 186,6 tonnes; in 1991, overfishing               abuse to be assessed? In particular:
     totalling 1 728 tonnes; in 1992, overfishing totalling 2 196 tonn-
     es; in 1993, overfishing totalling 179 tonnes; in 1994, overfishing
     totalling 378 tonnes; in 1995, overfishing totalling 3 209 tonnes
     and 528 tonnes in the absence of a quota; in 1996, overfishing                 2.1. Do the percentage by which normal domestic
     totalling 39 tonnes and 23 tonnes in the absence of a quota; in                      consumption is exceeded and/or the loss suffered
     1997, overfishing amounting to 72 tonnes.                                            by an undertaking holding a dominant position
                                                                                          compared with its total turnover and total profits
                                                                                          constitute appropriate criteria? If so, how are the
                                                                                          level of that percentage and the level of that loss
                                                                                          determined (the latter as a percentage of turnover
                                                                                          and total profits), above which the conduct in
                                                                                          question may be abusive?