CELEX: C2003/171/56
Language: en
Date: 2003-07-19 00:00:00
Title: Case T-141/03: Action brought on 14 April 2003 by Sniace, S.A. against the Commission of the European Communities

C 171/32               EN                          Official Journal of the European Union                                        19.7.2003
The applicant claims that the Court should:                                approved under the name ‘Allex’. This Marketing Authorisation
                                                                           (‘MA’) covers three pharmaceutical forms: film-coated tablets,
—     annul the decision of the Board of Appeal of 13 February             syrup and an oral lyophilisate.
      2003 and/or the corrigendum of the decision of the First
      Board of Appeal of 13 March 2003;
                                                                           On 2 October 2002, the applicant submitted to the EMEA an
—     order the defendant to pay all the costs associated with             application for a type I variation of the MA to change the
      these proceedings.                                                   name of the oral lyophilisate form from ‘Allex 5 mg oral
                                                                           lyophilisate’ to ‘Allex Reditabs 5 mg oral lyophilisate’. In the
                                                                           light of further explanations given by the applicant, the EMEA
                                                                           refused with the contested decision to allow the name change.
Pleas in law and main arguments
                                                                           In support of its claim, the applicant invokes violations of the
The origin of the action is the same as in Case T-380/02                   applicable legislation and of the principle of non-discrimi-
(SUCCESS-MARKETING Unternehmensberatungsgesellschaft                       nation. Furthermore, the applicant submits that its rights of
v OHIM, (OJ C 101 of 26.4.2003, p. 35)), and the pleas in law              defence have been violated and that the EMEA has violated the
and arguments correspond to those submitted in that case.                  obligation to state reasons.
                                                                           According to the applicant, the contested decision wrongfully
                                                                           applied the Judgment of the Court of First Instance in Case
                                                                           T-123/00 Thomae ( 1) to refuse the proposed name change.
                                                                           The applicant argues that the present case does not concern
                                                                           the question of whether different names can be used for the
Action brought on 18 April 2003 by Shering-Plough Ltd.                     same medicinal product but the question of whether different
against the Commission of the European Communities                         names can be used for different medicinal products covered by
and the European Agency for the Evaluation of Medicinal                    the same MA. As a consequence, the applicant submits that
                       Products (‘EMEA’)                                   the Judgment in Case T-123/00 does not apply nor can it be
                                                                           extended to apply in the present case.
                         (Case T-133/03)
                                                                           The applicant claims furthermore that the EMEA has violated
                                                                           the principle of non-discrimination. According to the appli-
                         (2003/C 171/55)
                                                                           cant, there is no objective justification to treat the Marketing
                                                                           Authorisation Holders whose two pharmaceutical forms are
                   (Language of the case: English)                         covered by the same MA and those whose two pharmaceutical
                                                                           forms are covered by two MA differently.
An action against the Commission of the European Communi-                  (1 ) Judgement of 10.12.2002, Case T-123/00 Dr. Karl Thomae
ties and the European Agency for the Evaluation of Medicinal                    GmbH v Commission (not published yet).
Products (‘EMEA’) was brought before the Court of First
Instance of the European Communities on 18 April 2003 by
Shering-Plough Ltd., Brussels, Belgium, represented by Dr.
G. Berrisch and Mr P. Bogaert, lawyers.
The applicant claims that the Court should:
                                                                           Action brought on 14 April 2003 by Sniace, S.A. against
—     annul the Decision of 14 February 2003 of the EMEA                          the Commission of the European Communities
      rejecting a so-called type I variation for the name of the
      medicinal product ‘Allex 5 mg oral lyophilisate’ into
      ‘Allex Reditabs 5 mg oral lyophilisate’.                                                     (Case T-141/03)
—     order the Defendants to pay the Applicant’s costs                                            (2003/C 171/56)
                                                                                             (Language of the case: Spanish)
Pleas in law and main arguments
The applicant is active in the field of medicinal products and             An action against the Commission of the European Communi-
is the Marketing Authorisation Holder for medicinal products               ties was brought before the Court of First Instance of the
 ---pagebreak--- 19.7.2003              EN                        Official Journal of the European Union                                        C 171/33
European Communities on 14 April 2003 by Sniace, S.A.,                         the conditions offered by Caja Cantabria against offers
whose registered office is in Madrid, represented by José Luis                 received from other private credit institutions and their
Baró Fuentes, lawyer.                                                          adherence to the guidelines laid down by the Commission
                                                                               in its Notice to the Member States of 13 November
                                                                               1993, lead to the conclusion that the loan with profit
                                                                               participation was granted under market conditions.
The applicant claims that the Court should:
                                                                         3.    Infringement of the principles of legal expectations and
—     annul Article 1 of the Decision of 11 December 2002 in                   proportionality. The applicant claims in this regard, first,
      so far as it states Spain has granted aid to Sniace, S.A.                that the lawfulness of the general system in Spain
      amounting to EUR 7 388 258;                                              concerning the granting of loans with profit participation
                                                                               to undertakings undergoing rationalisation, conformity
                                                                               with the formal requirements laid down by the Director
—     in the alternative, maintain Article 1 of the Decision of                de Ayudas de Estado (Director for State aid) (namely:
      11 December 2002 in so far as it finds that the State aid                documentary evidence that the loan was granted under
      is compatible with the common market;                                    market conditions), and the assurances provided by him
                                                                               that no further action would be taken, gave rise to a
                                                                               legitimate expectation on the part of the applicant that
—     order the defendant to pay the costs.                                    the administrative procedure would be concluded either
                                                                               by a decision that no further investigations would ensue
                                                                               or by a finding that the loan could not be considered to
                                                                               be State aid. Secondly, the applicant is of the view that
                                                                               the duration of the investigation (58 months) and the
Pleas in law and main arguments                                                means invested by the Commission in enquiring into a
                                                                               commercial transaction that was not at all technically
                                                                               complicated go beyond the limits of what is normally
                                                                               appropriate or necessary in this kind of operation.
The applicant company in these proceedings objects to the
description as ‘aid granted by a Member State or through State
                                                                         4.    Finally, the applicant undertaking alleges breach of its
resources’ of a contract for a subordinated convertible loan
                                                                               rights of defence and, in particular, of professional
with profit participation, amounting to EUR 12 020 242,                        secrecy as protected by Article 287 EC inasmuch as the
entered into with Caja Cantabria, together with a liquidity
                                                                               Commission forwarded, at the first request, the replies
agreement, which provided for the conversion into equity of
                                                                               of the Spanish authorities (including the applicant’s
credits under the loan.                                                        comments) to the lawyers for the undertaking whose
                                                                               complaint had given rise to the investigation.
In support of its claims, the applicant relies on the following
pleas in law and main arguments:
1.    Misinterpretation of the concept of ‘aid granted by a
      Member State or through State resources’ laid down in
      Article 87(1) EC. First, the applicant disputes that the
      Commission has established in its final decision that the          Action brought on 28 April 2003 by Nadine Schmit
      funds used by Caja Cantabria to finance the loan with                against the Commission of the European Communities
      profit participation made to Sniace were ‘State resources’.
      It points out, in that regard, that Caja Cantabria is a
      private credit institution and thus governed by private                                    (Case T-144/03)
      law. Its funds are not State resources but are private funds
      provided by private individuals and undertakings. In the
      present case, Caja Cantabria acted as a private investor                                   (2003/C 171/57)
      which invests its capital by reference to relatively short-
      term profitability. Secondly, the applicant states that the
      decision to finance Sniace was a strictly commercial                                  (Language of the case: French)
      decision adopted in accordance with criteria relating to
      operational profitability and that the public authorities
      played no part in the technical or commercial decision to
      grant the loan.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
2.    Manifest error of assessment in the application of the rule        European Communities on 28 April 2003 by Nadine Schmit,
      of ‘private investor in a market economy’. According               residing in Ispra (Italy), represented by Pierre-Paul Van
      to the applicant, a detailed analysis of the conditions            Gehuchten and Pierre Jadoul, lawyers, with an address for
      governing the loan, together with a comparison of                  service in Luxembourg.