CELEX: C1996/318/30
Language: en
Date: 1996-10-26 00:00:00
Title: Action brought on 12 August 1996 by Breda Fucine Meridionali SpA against the Commission of the European Communities (Case T-126/96)

26 . 10 . 96         1 EN                   Official Journal of the European Communities                                      No C 318 / 15
otherwise the objectives which Decision 94/90/EC is                    The applicants submit that the prohibition laid down in
intended to achieve would not be attained . This is all the            Articles 2 ( b ) and 3 ( a ) of the Directive, in so far as they refer
more so in the present case, in which the non-production of            to the therapeutic use of beta-agonists in approved
the documents requested, which form the subject-matter of              veterinary medicinal products, will deprive them of their
an application for measures of organization of procedure in            right to manufacture and market the veterinary medicinal
another case, is contrary to the proper administration of              products in question for which they hold regular licences in
justice .                                                              conformity with applicable European rules . This
                                                                       interference with the applicants ' specific rights is not
In addition , the applicant asserts that there has been an             consistent with EC fundamental principles of law, such as
infringement of the obligation to provide a statement of               the principle of proportionality, the principles of legal
reasons pursuant to Article 190 of the EC Treaty .                     certainty and of legitimate expectations, and the principle of
                                                                       good administration .
                                                                       In this regard the applicants, while understanding the
                                                                       legitime interest of the Council and the Commission to
Action brought on 9 August 1996 by Boehringer Ingelheim                combat the illegal use of beta-agonists as bulk chemicals for
Vetmedica GmbH and C. H. Boehringer Sohn Limited                       growing purposes, consider that a ban on the placing on the
  Partnership against the Council of the European Union                market of their veterinary medicinal products is not
                                                                       justified . Indeed, as a consequence of that ban :
                        ( Case T-125 /96
                          ( 96/C 318/29 )                              — animals are deprived of an essential product for the
                                                                            protection of their health ,
                 (Language of the case: English)
                                                                       — the applicants are denied their legitimate right to
An action against the Council of the European Communities                   continue to market products which are praised by all
was brought before the Court of First Instance of the                       practitioners for their safety and quality .
European Communities on 9 August 1996 by Boehringer
Ingelheim Vetmedica GmbH and C. H. Boehringer Sohn                     Such effects cannot be justified by the aim pursued by the
Limited Partnership, represented by Messer Denis                       Council when adopting the contested measure .
Waelbroeck and Denis Fosselard , of the Brussels Bar,
Liedekerke Wolters Waelbroeck & Kirkpatrick , 3                        Moreover, Article 43 of the EC Treaty has been violated, in
boulevard de l'Empereur, Brussels, with an address for                 so far as the European Parliament was consulted on a
service in Luxembourg at the offices of Arendt &                       proposal which differed substantially from the text of
Medernach, 8— 10 rue Mathias Hardt.                                    Directive 96/22/EC .
The applicant claims that the Court should :                            (>) OJ No L 125 , 23 . 5 . 1996 , p . 3 .
— annul Articles 1 , 2, 3 and 4 of Council Directive
      96/22/EC of 29 April 1 996 ( 1 ), in so far as they prohibit
      the placing on the market of veterinary medicinal
      products containing beta-agonists for administering for
      therapeutic purposes to animals the flesh and products
      of which are intended for human consumption ,                     Action brought on 12 August 1996 by Breda Fucine
                                                                        Meridionali SpA against the Commission of the European
— condemn the Community, as represented here by the                                                  Communities
      Council, to repair the damage suffered by them as a                                         ( Case T-126/96 )
      result of the contested measure,
                                                                                                    ( 96/C 318/30 )
 — order the Council to bear the costs .
                                                                                         (Language of the case: Italian)
 Pleas in law and main arguments adduced in support
                                                                        An action against the Commission of the European
 The applicants are the sole significant producers of                   Communities was brought before the Court of First
 medicines based on beta-agonists of the kind affected by               Instance of the European Communities on 12 August 1996
 Directive 96/22/EC . According to them, Directive 96/22/EC             by Breda Fucine Meridionali SpA, whose registered office is
 targets specifically their products, which must be seen as             at Bari, Italy, represented by Antonio Tizzano and Gian
 having motivated the Community institutions in this                    Michele Roberti, both of the Naples Bar, with an address for
 matter .
                                                                        service in Brussels at the Chambers of Antonio Tizzano, 36 ,
 The prohibition referred to in the contested Directive will , in       place du Grand Sablon .
 fact, prevent the administering of beta-agonists to treat
 respiratory disorders in food producing animals of any                 The applicant claims that the Court should :
 species . The other common therapeutic use of beta-agonists ,
 i.e. inducing tocolysis in cows when calving, will continue to         — annul in whole or, in the alternative , in part ( as regards
 be authorized by the Directive .                                           the points referred to in this action ) the Commission's
 ---pagebreak--- No C 318/16           EN                  Official Journal of the European Communities                                   26 . 10 . 96
    decision of 29 May 1995 concerning certain State aid                  during the period in which it was producing in order to
    granted by Italy to Breda Fucine Meridionali SpA                      supply the needs of the 'defence sector' is covered by the
    ( COM(96 ) 1643 final ),                                              derogation provided for by Article 223 ( 1 ) ( b ) of the
                                                                         Treaty . In addition, the financial assistance subsequent
— order the Commission to pay the costs of these                         to 1987 can be explained by considerations relating to
    proceedings .                                                        the 'group policy' pursued by the controlling
                                                                         company .
Pleas in law and main arguments adduced in support                   — Misapplication of Article 92 ( 3 ) ( a ) and (c ) of the
                                                                         Treaty.
The applicant in these proceedings is a second smelting                  In this connection the applicant maintains that the
foundry forming part of the EFIM group . Until 1986 two                  Commission infringed that provision, in that it failed to
companies in the defence sector were shareholders in the                 assess correctly the aid granted for reorganization and
applicant company. By the contested decision, the                        restructuring and the importance of the fact that the
Commission declared that State aid alleged to have been                  company is established in a particularly disadvantaged
granted to the applicant was incompatible with the common                region .
market and also that the aid was unlawful inasmuch as prior
notification had not been given in accordance with
Article 93 ( 3 ) of the EC Treaty. The Commission has
moreover ordered the aid to be repaid.
In this respect the applicant puts forward the following
grounds for contesting the decision :                                Action brought on 12 August 1996 by EFIM — Ente
                                                                     Partecipazioni e Finanziamento Industria Manifatturiera, in
                                                                     liquidation, against the Commission of the European
— Breach of procedural rules and of the principal audi                                         Communities
   alteram partem.
                                                                                            ( Case T-127/96 )
   According to the applicant, in its communication of                                        ( 96/C 318/31 )
    initiation of the procedure the Commission merely
    referred to the financial support to the sum of Lit 52 000                      (Language of the case: Italian)
    million received by EFIM and loans guaranteed by the
    State of the sum of Lit 10 000 million, without
   mentioning other presumed transfers of funds or the              An action against the Commission of the European
   dates on which those took place . Thus, in that                   Communities was brought before the Court of First
   communication, the defendant did not refer, directly or           Instance of the European Communities on 12 August 1996
   indirectly, to much of the aid challenged in the                  by EFIM — Ente Partecipazioni e Finanziamento Industria
   decision .                                                       Manifatturiera , in liquidation, whose registered office is at
                                                                     Bari, Italy, represented by Antonio Tizzano and Gian
                                                                    Michele Roberti, both of the Naples Bar, with an address for
— Breach of the principles of legal certainty and legitimate         service in Brussels at the Chambers of Antonio Tizzano, 36
   expectations, and failure to observe the five-year               place du Grand Sablon .
   limitation period .
                                                                    The applicant claims that the Court should :
   In the decision, the Commission challenged the grant of
   aid dating from 1985 to 1992 . By so doing, it declared          — annul in whole or, in the alternative, in part ( as regards
   acts and relationships going back a long period of time to            the points referred to in this action ) the Commission 's
   be unlawful . The applicant considers that the defendant              decision of 29 Mai 1995 concerning certain State aid
   ought not to have included such remote acts and                       granted by Italy to Breda Fucine Meridionali SpA
   relationships in its legal appraisal . A precise limitation           ( COM(96 ) 1643 final ),
   period must be complied with even with regard to State
   aid; by analogy with the period fixed for other matters          — order the Commission to pay the costs of these
   ( Article 43 of the Statute of the Court of Justice and               proceedings .
   Regulation ( EEC ) No 2988/74 ), that period should be of
   five years ' duration .
                                                                    Pleas in law and main arguments adduced in support
— Breach of Article 92 ( 1 ) of the Treaty,
                                                                    The pleas in law and main arguments are identical to those
                                                                    in Case T-126/96 Breda Fucine Meridionali ( M.
   in that the Commission did not establish the nature of
   the aid involved. Specifically, the defendant altogether         (') See page 15 of this Official Journal .
   failed to assess the aid in question in the light of the
   situation as it was when the aid was granted. In that
   regard the applicant states that the assistance given