CELEX: C2001/061/07
Language: en
Date: 2001-02-24 00:00:00
Title: Case C-463/00: Action brought on 21 December 2000 by the Commission of the European Communities against the Kingdom of Spain

24.2.2001               EN                       Official Journal of the European Communities                                         C 61/3
Under Community law, in particular under the principle of                   Action brought on 21 December 2000 by the Commission
Community solidarity contained in Article 10 EC, and in the                 of the European Communities against the Kingdom of
circumstances described in the grounds of this decision (1), is                                           Spain
an administrative body required to reopen a decision which
has become final in order to ensure the full operation of
Community law, as it is to be interpreted in the light of a                                          (Case C-463/00)
subsequent preliminary ruling?
                                                                                                      (2001/C 61/07)
(1) In this case the appellant exhausted the legal remedies available to
    (although the College did not seek a preliminary ruling under (the      An action against the Kingdom of Spain was brought before the
    present) Article 234 at the time) and the College gave an               Court of Justice of the European Communities on 21 December
    interpretation of European law on a specific point which proved         2000 by the Commission of the European Communities,
    subsequently to differ from the Court’s interpretation in a later       represented by Maria Patakia and Manuel Desantes, with an
    judgment.                                                               address for service in Luxembourg at the office of Carlos
                                                                            Gómez de la Cruz, Wagner Centre, Kirchberg.
                                                                            The applicant claims that the Court should:
                                                                            1.    Declare that Article 2 and Article 3(1) and (2), together
                                                                                  with Article 1, of Law 5/1995 (1), and the implementing
                                                                                  decrees enacted under Article 4 thereof (Royal Decrees
                                                                                  No 3/1996 of 15 January 1996 concerning Repsol, No
                                                                                  8/1997 of 10 January 1997 concerning Telefónica de
Reference for a preliminary ruling by the Corte d’Appello                         España, No 40/1998 of 16 January 1998 concerning
di Milano by order of that court of 25 October 2000 in                            Argentaria, No 562/1998 of 2 April 1998 concerning
the case of VIS Farmaceutici — Istituto Scientifico delle                         Tabacalera and No 929/1998 of 14 May 1998 concerning
Venezie SpA against Duphar International Research BV,                             Endesa), in so far as they implement a system of prior
and Consorzio Produttori Principi Attivi Generici —                               administrative authorisation
                           CPA, intervener
                                                                                  —     which is not justified by overriding public interest
                           (Case C-454/00)                                              requirements,
                                                                                  —     without laying down objective criteria which are
                            (2001/C 61/06)                                              consistent and have been made public, and
                                                                                  —     without complying with the principle of pro-
Reference has been made to the Court of Justice of the                                  portionality,
European Communities by order of the Corte d’Appello di
Milano (Court of Appeal, Milan) of 25 October 2000, which
was received at the Court Registry on 13 December 2000, for                       are incompatible with Article 43 EC (ex Article 52) and
a preliminary ruling in the case of VIS Farmaceutici — Istituto                   Article 56 EC (ex Article 73b).
Scientifico delle Venezie SpA, having its registered office in
Padua, Italy, against Duphar International Research BV, having              2.    Order the Kingdom of Spain to pay the costs.
its registered office in the Netherlands, and Consorzio Produt-
tori Principi Attivi Generici — CPA, intervener, on the
following question:
                                                                            Pleas in law and main arguments
Must Article 4 of Regulation No 1768/92 (1) be interpreted as               The abovementioned provisions of Law 5/1995 and its
meaning that the scope of protection of the supplementary                   implementing decrees enable the Spanish authorities to subject
certificate extends only to manufacture of the raw material                 to prior administrative authorisation certain decisions (liqui-
from which is prepared the product which constitutes the                    dation, hiving off, merger, change of the company’s object,
medicinal product covered by the marketing authorisation?                   sale of assets and sale of more than 10 % of the shares) (Article
                                                                            3) taken by certain categories of companies in which the
                                                                            State’s shareholding is in excess of 25 % of the share capital
(1) Council Regulation (EEC) No 1768/of 18 June 1992 concerning             and thereby results in it effectively controlling the company
    the creation of a supplementary protection certificate for med-         (Article 1), provided that such decisions lead either to the
    icinal products (OJ L 182, 2.7.1992, p. 1).                             State’s shareholding being reduced by at least 10 % of the
                                                                            capital so that its holding is less than 50 %, or to its
                                                                            shareholding being reduced by at least 15 % of the capital by
                                                                            any means (Article 2). Those facts have not at any time been
                                                                            disputed by the Spanish Government.
 ---pagebreak--- C 61/4                 EN                      Official Journal of the European Communities                                      24.2.2001
The Commission submits that:                                              Question 2
—     the possibility of making certain operations subject to
      prior administrative authorisation, in the circumstances            1.    The Immigration Adjudicator having found that the
      described in the articles cited, constitutes a restriction                Appellant, and the spouse of a person present and settled
      on the free movement of capital and the freedom of                        in the United Kingdom were (or would be) afforded
      establishment, which are provided for in Article 56 EC                    different treatment in that
      (ex Article 73b) and Article 43 EC (ex Article 52);
—     the system of administrative authorisation laid down by                   a)    the Appellant, having entered the United Kingdom
      Law 5/1995 can in no way be justified by overriding                             as the spouse of an EU citizen exercising free
      reasons of public interest and clearly involves the exercise                    movement rights, was required to have been in the
      of discretion. That discretionary power is a key factor                         United Kingdom for four years before he could
      conducive to a negative assessment as regards the require-                      apply for indefinite leave to remain, whereas
      ment of proportionality and to the conclusion that what
      is involved is a system allowing indirect discrimination.
                                                                                b)    the spouse of a person who was present and settled
                                                                                      in the United Kingdom (whether a British national
(1) Law 5/1995 of 23 March 1995 on the rules applying to the sale                     or as a person who had been granted indefinite leave
    of public shareholdings in certain companies (Boletı́n Oficial del                to remain) would qualify after one year for indefinite
    Estado No 72 of 25 March 1995).
                                                                                      leave to remain.
                                                                          2.    No evidence (or argument) concerning justification of the
                                                                                differential treatment between the applicant and such a
                                                                                spouse of a person present and settled having been
                                                                                presented to the referring court either at the hearing
                                                                                leading up to the Order for Reference of 25 September
                                                                                1998, in the written or oral observations made by the
Reference for a preliminary ruling by the Immigration                           Respondent before the European Court of Justice or the
Appellate Authority (United Kingdom), by order of that                          hearing leading up to the present Order for Reference,
court of 19 December 2000, in the case of Arben Kaba                            despite the request by the Adjudicator for full argument,
    against Secretary of State for the Home Department                          the Immigration Adjudicator asks
                         (Case C-466/00)
                                                                                1.    Whatever the answer to the first question set out
                          (2001/C 61/08)                                              above, is the Court’s judgment of 11 April 2000 in
                                                                                      this case (Case-356/98) to be interpreted as stating
                                                                                      that, in these circumstances, there was discrimi-
Reference has been made to the Court of Justice of the                                nation contrary to Article 39 EC and/or Article 7(2)
European Communities by an order of the Immigration                                   of Regulations 1612/68 (2)?
Appellate Authority (United Kingdom) of 19 December 2000,
which was received at the Court Registry on 27 December
2000, for a preliminary ruling in the case of Arben Kaba                        2.    After re-assessment of the facts, is there discrimi-
against Secretary of State for the Home Department, on the                            nation contrary to Article 39 EC and/or Article 7(2)
following questions:                                                                  of Regulations 1612/68?
Question 1
                                                                          (1) Judgment of the Court of 11 April 2000 in Case C-356/98, Arben
1.    What mechanisms are there for the referring court or the                Kaba against Secretary of State for the Home Department (ECR
      parties to the proceedings (before the referring court and              p. I-2623).
      the ECJ) to ensure that the totality of the proceedings             (2) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
      comply with the obligations under Article 6 ECHR and                    on freedom of movement for workers within the Community (OJ
      therefore to ensure that no liability for breach of Article             L 257, 19.10.1968, p. 2 [SE SER1 68(H) p. 475]).
      6 ECHR arises either under the domestic human rights
      statute or before the Court of Human Rights? and
2.    Was the procedure followed in this case in compliance
      with the requirements of Article 6 ECHR and, if not, how
      does this affect the validity of the first judgment (1)?