CELEX: C1996/197/43
Language: en
Date: 1996-07-06 00:00:00
Title: Action brought on 3 May 1996 by Willy De Corte against the Commission of the European Communities (Case T-62/96)

No C 197/20           EN                 Official Journal of the European Communities                                       6 . 7 . 96
Action brought on 29 April 1996 by Merck & Co. Inc., NV                extent and for such periods as are strictly necessary in
Organon and Glaxo Wellcome pic against the Commission                  order to rectify the situation linked to the serious
                of the European Communities                            difficulties that are liable to persist.
                        {Case T-60/96 )
                         ( 96/C 197/42 )                            — Manifest error of assessment of the facts
               (Language of the case: Englisb)                         Assuming that the Commission did have a power of
                                                                       appraisal in regard to the economic evidence submitted
An action against the Commission of the European                       by the abovementioned Member States under
Communities was brought before the Court of First                      Article 379, the applicants state that it was manifestly
Instance of the European Communities on 29 April 1996 by               incorrect in finding that an increase in the volume of
Merck & Co., Inc., NV Organon and Glaxo Wellcome pic,                  imports from Spain of pharmaceuticals patented in the
represented by Romano Subiotto, Solicitor of the Supreme               importing Member State but not in Spain 'would not
Court of England and Wales, and Mario Siragusa, of the                 appear' to be so significant in the long run as to bring
Rome Bar, with an address for service in Luxembourg at the             about serious difficulties on the pharmaceutical market
office of Pierre Elvinger, Elvinger & Hoss, 15 côte                    of the importing Member States . The applicants still
d'Eich .                                                               submit that the mere use of a standard and a general
                                                                       formula to reject differing and detailed economic
                                                                       evidence submitted by Member States indicates that the
The applicant claims that the Court should:
                                                                       Commission has failed to provide sufficient reasons for
                                                                       its conclusion .
— annul the decisions of the Commission of 20 December
    1995 ,
                                                                    — Breach of essential procedural requirements
— declare that the Commission must fulfil its obligations
    under Article 176 , in particular by replacing the
                                                                       According to the applicants :
    decisions with effect from the date on which they were
    adopted despite the expiry of the transitional period laid
    down in Article 379 of Spain's Act of Accession,                   — the Commission has ignored its duty to accept a
                                                                            Member State's assessment, as indicated by the use of
— order the Commission to pay the costs .                                   the term 'shall' in Article 379 (2 ),
Pleas in law and main arguments:                                       — the observance of the right to be heard, in
                                                                            conjunction with the Commission's duty to carry out
The applicants, three representative undertakings in the                    a detailed and impartial examination of the
field of pharmaceutical products, challenge the Commission                  applications, requires the Commission, prior to
decisions rejecting the adoption of safeguard measures to                   rejecting them, to explain precisely why it considered
solve the problems caused by the expiry of the transitional                 the evidence submitted by the Member States to be
period provided by Article 47 of the Act of Accession of                    insufficient to establish the likely existence of serious
Spain with respect to pharmaceutical products put on the                    difficulties liable to persist. This procedural step
market in Spain, where they are unpatentable, and exported                  would have been essential to enable the Member
to other European Community Member States in which                          States to submit any further relevant evidence ,
they are protected by patents . The adoption of these
safeguard measures was demanded by France, Belgium,                    — the Commission has breached the principle of
Austria, Denmark, Ireland, the United Kingdom and                           inalterability of acts in formulating the contested
Germany.                                                                    decisions .
The application is based on the following grounds :
— Manifest error of legal assessment
     Contrary to the contested decision, according to which
     measures taken on the basis of Article 379 of the Act of       Action brought on 3 May 1996 by Willy De Corte against
     Accession of Spain, the legal basis for general safeguard            the Commission of the European Communities
     measures, cannot last beyond the end of the transitional                                Case T-62/96)
     period, the applicants submit that the end of this period
     could never have been meant to signify complete                                         ( 96/C 197/43 )
     convergence between the economies of Spain and those
     of the existing Member States and the automatic                                (Language of the case: French)
     irrelevance of the possible need for a Member State to
     maintain measures authorized during the transitional
     period as protection against difficulties arising from this    An action against the Commission of European
     lack of convergence . Moreover, Article 379 expressly          Communities was brought before the Court of First
     provides that protective measures must be of such an           Instance of the European Communities on 3 May 1996 by
 ---pagebreak--- 6 . 7 . 96             EN I               Official Journal of the European Communities                               No C 197/21
Willy De Corte, residing at Halle ( Belgium), represented by         warrant the conclusion that that condition was related to
Lucas Vogel, of the Brussels Bar, with an address for service        the events of 16 April 1988 , which had not given rise to any
at the Chambers of Christian Kremer, 8—10 rue Mathias                injury. The Commission then opened the procedure
Hardt .                                                              provided for by Article 21 of the Rules on the insurance of
                                                                     officials of the European Communities against the risk of
The applicant claims that the Court should :                         accident and of occupational disease, and communicated a
                                                                     draft decision to the applicant on 23 July 1992 . The
— annul the contested decision, adopted on 25 January                applicant then requested that a meeting of the medical
     1996 and notified to the applicant on 1 February 1996,          committee be held in accordance with the provisions of
     whereby the complaint lodged by the applicant on                Article 23 of the abovementioned Rules . Upon the
     14 September 1996 was rejected and the Commission               conclusion of a particularly lengthy procedure before the
     refused to treat as an accident and accept, in accordance       medical committee, the Commission communicated to the
     with Article 73 of the Staff Regulations, financial             applicant the decision of 16 June 1 995 refusing to treat the
     responsibility for the consequences of the myocardial           infarction suffered by him on 16 April 1988 as a matter
     infarction suffered by the applicant on 16 April                covered by Article 73 of the Staff Regulations. The applicant
     1988 ,                                                          lodged a complaint against that decision. The decision of
                                                                     25 January 1996, which forms the subject-matter of the
— order the defendant to pay the costs and the expenses              present action, was adopted in response to that
     necessarily incurred for the purposes of the                    complaint.
     proceedings .
                                                                     The applicant maintains, first, that the contested decision is
Pleas in law and main arguments:                                     in breach of the decision of 1 3 June 1988 and the principle of
                                                                     the protection of legitimate expectations .
The applicant states that on 16 April 1988 he took part in a
football match during which he suffered a myocardial
infarction following a violent collision with another player.        He also pleads infringement of Article 2 of the
An accident report was immediately sent to the                       abovementioned Rules, in that the administration refused to
Commission, accompanied by a medical certificate . On                accept that the infarction suffered by him constituted an
13 June 1988 the Commission informed the applicant that              'accident', whereas that provision states that any muscular
financial responsibility for the accident was accepted               complaint caused by exertion constitutes an accident.
pursuant to Article 73 of the Staff Regulations.
Subsequently, however, the Commission informed him that,             Lastly, the applicant contends that the administration has
in its opinion, the infarction had resulted from a                   committed a manifest error of assessment in considering
pathological condition linked to a thrombosis of the                 that the infarction suffered by him resulted from a
right-hand coronary artery and that there was nothing to             pre-existing coronary disease .