CELEX: C1998/327/22
Language: en
Date: 1998-10-24 00:00:00
Title: Action brought on 8 September 1998 by the French Republic against the Commission of the European Communities (Case C-332/98)

C 327/14               EN                Official Journal of the European Communities                                    24.10.98
     5 of Directive 80/68/EEC (1), Ireland has failed to fulfil         in so far as it did not apply Article 90(2) of the EC
     its obligations under the Treaty;                                  Treaty;
Ð order Ireland to pay the costs.                                   Ð order the Commission to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                    Pleas in law and main arguments adduced in support:
According to Article 4 of Council Directive 80/68/EEC,
Member States shall prohibit all direct discharge of                The contested decision was adopted following the
substances in List I annexed to the directive and according         judgment of the Court of First Instance in Case T-49/93
to Article 5 of the directive, Member States shall make             SocieÂteÂ Internationale de Diffusion et d'EÂdition (SIDE) v
subject to prior investigation and authorization all direct         Commission of the European Communities ([1995] ECR
discharge of substances in List II annexed to the directive.        II-2501).
Irish legislation at present does not prohibit direct               According to Article 1 of the contested decision, the aid
discharges by sanitary authorities of substances in List I to       granted to the Centre d'Exportation du Livre FrancËais
groundwater and the general licensing system instituted             (CELF) for handling small orders for French-language
for trade and sewage effluents does not apply to                    books as aid within the meaning of Article 92(1) of the
discharges from a sewer and trade effluent discharged by a          EC Treaty, but is compatible with the common market
sanitary authority in the course of the performance of its          because it satisfies the conditions to qualify for the benefit
powers and duties other than from a sewer.                          of the derogation provided for by Article 92(3)(d) of that
                                                                    Treaty. It is also clear from that article of the contested
                                                                    decision that, since the French Government failed to notify
(1) Council Directive of 17 December 1979 on the protection of
                                                                    that aid to the Commission before implementing it, the
    groundwater against pollution caused by certain dangerous
    substances (L 20, 26.1.1980, p. 43).                            aid was granted unlawfully.
                                                                    It is clear from the recitals in the preamble to the
                                                                    contested decision that the Commission considered that, in
                                                                    accordance with the case-law (judgment in Case C-387/92
                                                                    Banco Exterior de EspanÄa [1994] ECR 872, paragraph 21),
Action brought on 8 September 1998 by the French                    since the aid was compatible with the common market, it
Republic against the Commission of the European                     was not necessary for it to consider whether the aid could,
                           Communities                              by virtue of Article 90(2) of the Treaty, escape the
                                                                    prohibition laid down in Article 92. Furthermore, it is
                        (Case C-332/98)                             clear from the recitals in the preamble to the decision that,
                                                                    in any event, the Commission considered that the French
                          (98/C 327/22)                             Government had not established that CELF was entrusted
                                                                    with the operation of services of general economic
                                                                    interest, since no reference was made to CELF in any
                                                                    legislative or administrative measure.
An action against the Commission of the European
Communities was brought before the Court of Justice of
the European Communities on 8 September 1998 by the
French Republic, represented by Kareen Rispal-Bellanger,            The applicant government considers that, by failing to
Deputy Director for International Financial Law and                 consider whether the aid at issue falls within the scope of
Community Law in the Ministry of Foreign Affairs,                   Article 90(2) of the Treaty, the Commission committed an
and FreÂdeÂrik Million, ChargeÂ de Mission in the same              error of law. The case-law cited above applies only to
Ministry, acting as Agents, with an address for service in          existing' aid. In respect of new aid, such as that in the
Luxembourg at the French Embassy, 8 B Boulevard                     present case, such an examination is necessary since, in
Joseph II.                                                          the absence of notification, that aid could become the
                                                                    subject of recovery.
The French Republic claims that the Court should:
                                                                    Furthermore, the applicant government considers that the
                                                                    aid at issue does fall within the scope of Article 90(2) of
Ð annul the decision of the Commission of the European              the Treaty. It is not necessary, in order for that provision
     Communities of 10 June 1998 (C(1998) 728 final) (1)            to apply, for a body to be entrusted by a legislative or
 ---pagebreak--- 24.10.98               EN               Official Journal of the European Communities                                  C 327/15
administrative measure with the operation of services of               not only to the product covered by the authorisation
general economic interest, but is sufficient that that                 to place the corresponding medicinal product on the
responsibility results from public-law contracts entered               market' but also to the derivatives (salts and esters) of
into, as here, between the body in question and the public             the product, bearing in mind that, under Article 1 of
authorities. Furthermore, it is not necessary, in order for            Regulation (EEC) No 1768/92, product' must be
Article 90(2) of the Treaty to apply, for the body to hold a           construed as meaning the active ingredient or
monopoly in the operation of the services in question.                 combination of active ingredients of a medicinal
                                                                       product'?
(1) Not yet published in the OJ.
                                                                   D. If the above extension to the derivatives of the active
                                                                       ingredient is accepted, must Article 4 of Regulation
                                                                       (EEC) No 1768/92 be construed as meaning that the
                                                                       protection conferred by the SPC is not impaired by
                                                                       the health authority measure granting marketing
                                                                       authorisation and in particular by the active ingredient
Reference for a preliminary ruling by the Commissione                  indicated in that authorisation as corresponding to the
dei Ricorsi contro i Provvedimenti dell'Ufficio Italiano               authorised medicinal product?
Brevetti e Marchi by order of 16 December 1997 in the
case of Merck & Co. Inc. v Ufficio Italiano Brevetti e
                             Marchi
                                                                   E. On the assumption, once again, that the suggested
                        (Case C-333/98)                                extension of the protection conferred by the SPC to
                                                                       the derivatives of the active ingredient is accepted,
                          (98/C 327/23)                                must the final phrase of Article 4 of Regulation (EEC)
                                                                       No 1768/92 be construed as meaning that the
                                                                       supplementary protection may be relied on for each of
                                                                       the medicinal products in so far as they have been
Reference has been made to the Court of Justice of the
                                                                       authorised by the health authority before the expiry of
European Communities by order of 16 December 1997
                                                                       the certificate, or is the first authorisation of the
from the Commissione dei Ricorsi contro i Provvedimenti
                                                                       medicinal product corresponding to the active
dell'Ufficio Italiano Brevetti e Marchi (Committee hearing
                                                                       ingredient sufficient?
Appeals against measures of the Italian Patent and
Trademark Office), which was received at the Court
Registry on 9 September 1998, for a preliminary ruling in
the case of Merck & Co. Inc. v Ufficio Italiano Brevetti e         F. Finally, if the active ingredient corresponding to the
Marchi (the Italian Patent and Trademark Office) on the                medicinal product which was the subject of the first
following questions:                                                   marketing authorisation is a salt or an ester of the
                                                                       patented substance, does the protection conferred by
                                                                       the SPC also extend to that substance and to its other
                                                                       derivatives?
A. May the recitals in the preamble to a Community
    regulation (in this case, recitals 13 and 17 in the
    preamble to Council Regulation (EC) No 1610/96) (1)            (1) OJ L 198, 8.8.1996, p. 30.
    be recognised as being prescriptive, and not solely as         (2) OJ L 182, 2.7.1992, p. 1.
    providing guidance for the interpretation of the
    regulation which they introduce?
B. On the assumption that the rules of authentic
    interpretation' are prescriptive and do not merely
    have an interpretative function, may recital 17 in             Action brought on 11 September 1998 by Commission of
    the preamble to Regulation (EC) No 1610/96 be                      the European Communities against Italian Republic
    recognised as having the status of a rule for the
    authentic interpretation of the provisions of Council                                 (Case C-334/98)
    Regulation (EC) No 1768/92 (2) to which that recital
    refers and, in particular, Article 4 of Regulation (EC)                                 (98/C 327/24)
    No 1768/92?
                                                                   An action against Italian Republic was brought before
C. If it is accepted that recital 17 in the preamble to            the Court of Justice of the European Communities on
    Regulation (EC) No 1610/96 does have the suggested             11 September 1998 by Commission of the European
    status as a rule of authentic interpretation, must             Communities, represented by Paolo Stancanelli, of its
    Article 4 of Regulation No 1768/92 be construed                Legal Service, acting as Agent, with an address for service
    as meaning that the protection conferred by a                  in Luxembourg at the office of Carlos Gómez de la Cruz,
    supplementary protection certificate (SPC) extends             Wagner Centre, Kirchberg.