CELEX: C2003/112/32
Language: en
Date: 2003-05-10 00:00:00
Title: Case C-122/03: Action brought on 19 March 2003 by the Commission of the European Communities against the French Republic

C 112/18                 EN                        Official Journal of the European Union                                         10.5.2003
The Commission of the European Communities claims that                     Action brought on 19 March 2003 by the Commission of
the Court should:                                                           the European Communities against the French Republic
—     declare that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with                                         (Case C-122/03)
      Commission Directive 2000/52/EC of 26 July 2000 on
      the transparency of financial relations between Member
      States and public undertakings as well as on financial                                         (2003/C 112/32)
      transparency within certain undertakings (1) or, in any
      event, by failing to notify them to the Commission,
      France has failed to fulfil its obligations under that
      directive;
                                                                           An action against the French Republic was brought before the
—     order France to pay the costs.                                       Court of Justice of the European Communities on 19 March
                                                                           2003 by the Commission of the European Communities,
                                                                           represented by H. Støvlbæk and B. Stromsky, acting as Agents,
                                                                           with an address for service in Luxembourg.
Pleas in law and main arguments
The period prescribed for transposition expired on 31 January              The applicant claims that the Court should:
2001.
                                                                           1.    Declare that, by imposing, pursuant to Article R. 5142-
( 1) OJ L 193 of 29 July 2002, p. 78.                                            15 of the Public Health Code, on traders importing or
                                                                                 distributing in France medicinal products which are
                                                                                 already covered by a marketing authorisation for the
                                                                                 French or Community market the requirement that they
                                                                                 submit, at the request of the monitoring authorities,
                                                                                 either a certified copy issued by the French agency for
Action brought on 18 March 2003 by the Commission of                             health products sanitary safety (FAHPSS) of the French
the European Communities against the Kingdom of Spain                            marketing authorisation or of the registration of the
                                                                                 medicinal product, or a document issued by the FAHPSS
                           (Case C-120/03)                                       attesting to the fact that the imported medicinal product
                                                                                 has obtained a marketing authorisation issued by the
                           (2003/C 112/31)                                       European Community, the French Republic has failed to
                                                                                 fulfil its obligations under Article 28 of the EC Treaty;
An action against the Kingdom of Spain was brought before                  2.    Order the French Republic to pay the costs.
the Court of Justice of the European Communities on 18 March
2003 by the Commission of the European Communities,
represented by K. Banks and J.L. Buendía Sierra, acting as
Agents, with an address for service in Luxembourg.
                                                                           Pleas in law and main arguments
The applicant claims that the Court should:
                                                                           So far as concerns the importation into France of pharmaceuti-
1.    Declare that, by failing to adopt the laws, regulations
                                                                           cal products already covered by a marketing authorisation for
      and administrative provisions necessary to comply with
                                                                           the French or Community market, Article R. 5142-15 of the
      Directive 98/71/EC ( 1) of the European Parliament and of
                                                                           Public Health Code requires the submission at the request of
      the Council of 13 October 1998 on the legal protection
                                                                           customs officers of either a certified copy of the marketing
      of designs or, in any event, by failing to communicate
                                                                           authorisation or of the registration of the medicinal product
      them to the Commission, the Kingdom of Spain has
                                                                           or a document attesting to the fact that the imported medicinal
      failed to fulfil its obligations under that directive;
                                                                           product has obtained a marketing authorisation issued by the
2.    Order the Kingdom of Spain to pay the costs.                         European Community, each of those documents being issued
                                                                           by the FAHPSS.
Pleas in law and main arguments
                                                                           The effects of that provision on traders wishing to import and
                                                                           distribute pharmaceutical products in France may be resumed
The period prescribed for implementation of the directive                  as follows: (i) formalities, costs and the time entailed by the
expired on 28 October 2001.                                                granting procedure are imposed on traders which they are
                                                                           obliged to bear, on pain of sanctions, throughout its term; (ii)
( 1) OJEC L 289 of 28 October 1998, p. 28.                                 those same traders are obliged to be constantly in possession
                                                                           of documents which could be potentially numerous and
                                                                           voluminous.
 ---pagebreak--- 10.5.2003               EN                       Official Journal of the European Union                                          C 112/19
Accordingly, the Commission is of the view that                          Pleas in law and main arguments
Article R. 5142-15 of the French Public Health Code is such
as to hinder, directly and indirectly, actually or potentially,
intra-Community trade and that it therefore amounts to a
measure of an effect equivalent to a quantitative restriction,           In August 1997 Irish Sugar complied with the Commission
prohibited by Article 28 of the EC Treaty.                               decision 97/624/EC of 14 May 1997 and paid the fine imposed
                                                                         on it. The Court of First Instance subsequently reduced the fine
                                                                         by judgment of 7 October 1999. When submitting details
The French legislation is discriminatory and can therefore be            about its bank account so that the part of the fine unduly
justified only on grounds of public interest as provided for in          levied could be reimbursed, Greencore (Irish Sugar’s mother
Article 30 of the EC Treaty.                                             company) also asked for confirmation that interest would be
                                                                         paid. On 4 January 2000 the Commission reimbursed the
                                                                         principal amount without interest thus, in the Commission’s
However, even leaving aside its discriminatory character, it             view, refusing to grant the request concerning interest.
must be pointed out that the measure in issue is unjustifiable.
In the internal market, the mere fact that a Community
product originates abroad cannot give rise to a suspicion that
it is non-compliant.                                                     Greencore did not react until after the judgment in case T-171/
                                                                         99 ‘Corus’ of 10 October 2001, in which the Court of First
                                                                         Instance stated that the Commission would have to pay interest
Even supposing that that measure could have been prompted                on a fine unduly levied. On 1 November 2001, almost two
by the objective of protecting human health and life, the                years after reimbursement of the part of the fine unduly levied,
objective of verifying whether a marketing authorisation has             Greencore, referring to the ‘Corus’ judgment, requested the
been granted could be attained as effectively by a system which          payment of interest on the amount of the fine reimbursed. By
is less of an obstacle to intra-Community trade, for example             letter of 11 February 2002 the Accounting Officer of the
by a system based on the checking of the number of the                   Commission informed Greencore that, when it requested the
marketing authorisation appearing on the external packaging              payment of interest on the amount of the fine unduly levied
of the medicinal product.                                                on 27 October 1999, the Commission only reimbursed the
                                                                         principal sum and had, therefore, already refused to pay
                                                                         interest at that date.
                                                                         Before the Court of First Instance the Commission raised an
                                                                         objection of inadmissibility arguing that the letter of 11 Febru-
Appeal brought on 19 March 2003 by the Commission of                     ary 2002 had not in any way changed the applicant’s legal
the European Communities against the order made on                       position. The Commission submitted that the letter merely
7 January 2003 by the Second Chamber of the Court of                     informed the applicant that it had failed to attack the
First Instance of the European Communities in case T-135/                Commission decision of 4 January 2000 not to grant interest
02 (1) between Greencore Group plc and the Commission                    and was therefore precluded from attacking that decision
                 of the European Communities                             now, taking advantage of a judgment obtained by another
                                                                         undertaking in a separate Court procedure.
                         (Case C-123/03 P)
                          (2003/C 112/33)                                The Commission submits that the Court of First Instance
                                                                         committed an error in law in rejecting the objection of
                                                                         inadmissibility. In the Commission’s view the Court of First
                                                                         Instance infringed Article 230 EC by declaring admissible an
An appeal against the order made on 7 January 2003 by the                action for annulment against an act that is not challengeable,
Second Chamber of the Court of First Instance of the European            since it does not bring about a distinct change in the applicant’s
Communities in case T-135/02 between Greencore Group plc                 legal position. According to the Commission the letter of
and the Commission of the European Communities, was                      11 February is a simple information telling the applicant that
brought before the Court of Justice of the European Communi-             it should have attacked the decision of 4 January 2000 refusing
ties on 19 March 2003 by the Commission of the European                  interest. It does not alter the applicant’s position in any way,
Communities, represented by K. Wiedner, acting as agent, with            since the Commission does not consider or re-consider the
an address for service in Luxembourg.                                    applicant’s right to receive payment of interest. There are,
                                                                         furthermore, no substantial new facts which should have
                                                                         prompted the Commission to re-examine its initial position.
The Appellant claims that the Court should:
—      annul the order of 7 January and declare the application
       inadmissible;                                                     (1 ) OJ C 169, 13.07.2002, p. 38.
—      order the applicant to bear the costs incurred before the
       Court of First Instance as well as the Court of Justice.