CELEX: C1997/142/30
Language: en
Date: 1997-05-10 00:00:00
Title: Appeal brought on 22 March 1997 by Union Française de l'Express (UFEX, previously called Syndicat Français de l'Express International, SFEI), DHL International and CRIE against the judgment delivered on 15 January 1997 by the Third Chamber of the Court of First Instance of the European Communities in Case T-77/95 between SFEI and Others and the Commission of the European Communities (Case C-119/97 P)

No C 142/ 14           EN                 Official Journal of the European Communities                                    10 . 5 . 97
which was received at the Court Registry on 20 March                      pension    fund   within    the meaning     of the     Wet
 1997, for a preliminary ruling in the case of Henia                      betreffende verplichte Deelneming in een Bedrijfspen­
Babahenini v. Belgian State on the following question:                    sioenfonds ( Law on Compulsory Participation in an
                                                                          Industrial Pension Scheme )?
In the light of Article 39 of the Cooperation Agreement
between the European Economic Community and the                      4 . Must Articles 86 and 90 of the EC Treaty, read
People's Democratic Republic of Algeria, approved by                      together, be interpreted as meaning that there is an
Regulation ( EEC ) No 2210/78 ('), may a Member State                     infringement of those provisions where the authorities
refuse to grant disablement benefit ( in this case that                   accord an industrial pension scheme an exclusive right
provided for by the Belgian Law of 27 February 1987 ) to                  which gives rise to a serious restriction of the freedom
a disabled person of Algerian nationality who has not                     to make pension arrangements with a private insurer ?
herself worked in Belgium, where that person resides in
Belgium with her spouse, an Algerian national in receipt
of a Belgian retirement pension ?
(') OJ No L 263 , 27. 9 . 1978 , p . 1 .
                                                                     Appeal brought on 22 March 1997 by Union Française de
                                                                     l'Express (UFEX, previously called Syndicat Français de
                                                                     l'Express International, SFEI), DHL International and
                                                                     CRIE against    the judgment delivered on 15 January 1997
                                                                     by the Third     Chamber of the Court of First Instance of
Reference for a preliminary ruling from the                          the European    Communities in Case T-77/95 between SFEI
Kantongerecht, Roermond, by judgments of that court of               and Others       and the Commission of the European
18 March 1997 in the case of Brentjens' Handelsonder­                                          Communities
neming BV v. Stichting Bedrijfspensioenfonds voor de
                  Handel in Bouwmaterialen                                                 ( Case C-l 19/97 P )
         ( Cases C-l 15/97, C-116/97 and C-117/97)                                            ( 97/C 142/30 )
                          ( 97/C 142/29 )
                                                                     An appeal against the judgment delivered on 15 January
Reference has been made to the Court of Justice of the               1997 by the Third Chamber of the Court of First Instance
European Communities by judgments of the                             of the European Communities in Case T-77/95 between
Kantongerecht ( Cantonal Court), Roermond, of 18 March               SFEI and Others and the Commission of the European
1997, which were received at the Court Registry on                   Communities was brought before the Court of Justice on
20 March 1997, for a preliminary ruling in the case of               22 March 1997 by Union Française de l'Express (UFEX,
Brentjens' Handelsonderneming BV v. Stichting Bedrijfs­              previously called Syndicat Français de l'Express Interna­
pensioenfonds voor de Handel in Bouwmaterialen on the                tional, SFEI ), established in Roissy CDG ( France ), DHL
following questions:                                                 International, established in Roissy ( France ), and CRIE,
                                                                     established in Asnières ( France ), represented by Eric
                                                                     Morgan de Rivery, of the Paris Bar, and Jacques Derenne,
1 . Must Article 85 ( 1 ) of the EC Treaty be interpreted as         of the Brussels and Paris Bars, with an address for service
    meaning that there is an agreement or decision of an             in Luxembourg at the Chambers of Alex Schmitt, 62
    undertaking or association of undertakings which                Avenue Guillaume .
    restricts competition or affects trade between Member
    States, as those elements are respectively referred to in
    that provision, where social partners within a                  The appellant claims that the Court should:
    particular sector of activity make agreements
    concerning pensions under which a single industrial
    pension scheme is set up for the whole sector, to which         — annul the judgment of the Court of First Instance
    all workers employed within the sector are in principle              delivered on 15 January 1997 in Case T-77/95 H SFEI
    to be compulsorily affiliated and which is to have the               and Others v. Commission,
    sole right to administer the funds collected for that
    purpose within the sector ?                                     — itself give final judgment in the case in accordance
                                                                         with Article 54 of the EC Statute of the Court of
2 . Must Articles 3 (g), 5 and 85 of the EC Treaty, read                 Justice,
    together, be interpreted as meaning that there is an
    infringement of those provisions where the authorities
    make participation in a single industrial pension               — in the alternative, in the event of the Court not itself
    scheme, as described in Question 1 , compulsory for                  giving final judgment, refer the matter back to a
                                                                         Chamber of the Court of First Instance with a
    undertakings within a particular sector of activity ?
                                                                         different composition,
3 . Must the term 'undertaking', as used in the
    competition provisions (Articles 85 to 94 ) of the EC           — order the Commission to pay the costs or, if it does
    Treaty, be interpreted as including an industrial                    not give final judgment, reserve the costs .
 ---pagebreak--- 10 . 5 . 97           EN                  Official Journal of the European Communities                                 No C 142/ 15
Pleas in law and main arguments adduced in support:                  — errors of law in the application of the concept of
                                                                          misuse of powers.
— Misrepresentation of the contested decision: the Court             (') OJ No C 54 , 22 . 2 . 1997, p. 20.
     of First Instance misrepresented the contested decision         ( ) Case T-24/90 Automec Sri v. Commission [ 1992 ] ECR II­
      by referring exclusively to the Community interest as              2223 .
     the sole independent ground of the contested decision,
     even though that term is not used anywhere in the
     contested decision and, moreover, nothing in the
     contested decision supports the conclusion that the
     Commission took into account the criteria laid down
     for determination of any such Community interest
                                                                     Reference for a preliminary ruling by the Court of Appeal,
     in the judgment of the Court of First Instance                  London, by order of that court of 26 October 1995 , in the
     in the second Automec (2 ) case. Furthermore, the
                                                                     case of Upjohn Ltd against 1 . The Licensing Authority
     Commission makes no reference to that judgment,                 established by the Medicines Act 1968; 2. Secretary of
     notwithstanding its usual practice of doing so when it          State for Health; 3 . Secretary of State for Wales; 4.
     wishes to rely on it,                                           Secretary of State for Scotland; 5 . Minister for Health and
                                                                                    Social Services for Northern Ireland
— error of law in that the judgment states the                                                 ( Case C-120/97 )
     Commission may base the contested decision on a                                             ( 97/C 142/31 )
     reference to another decision,
                                                                     Reference has been made to the Court of Justice of the
— infringement of Article 190 of the EC Treaty,                      European Communities by an order of the Court of
                                                                     Appeal, London, of 26 October 1995, which was received
                                                                     at the Court Registry on 24 March 1997, for a
— lack of legal basis : the Court of First Instance did not          preliminary ruling in the case of Upjohn Ltd against 1 .
     undertake the essential investigations that would have          The Licensing Authority established by the Medicines Act
     enabled it to establish the correctness of its conclusion       1968 ; 2 . Secretary of State for Health; 3 . Secretary of
     that the applicant was wrong to state that La Poste             State for Wales; 4 . Secretary of State for Scotland; 5 .
     could continue to grant cross-subsidies in the absence          Minister for Health and Social Services for Northern
     of requests by third parties to join its network and            Ireland, on the following questions:
     that accordingly it could or could not lawfully apply
     Article 86 of the EC Treaty or invoke the Community             1.   On the true construction of Council Directive 65/65/
     interest,                                                            EEC n as amended and in the light of Community
                                                                          law generally, is it the duty of a national court when
                                                                          ruling upon the compatibility with the aforesaid
— error of law in that the Court of First Instance could                  Community law of a decision of a Licensing Authority
     not lawfully infer from the documents before it that                 of a Member State to revoke a licence held by the
     the Commission duly found that the infringements had                 manufacturer of a medicine product to decide whether
     ceased,                                                              or not the said decision was the correct decision as
                                                                          opposed to a decision which the Licensing Authority
                                                                          could reasonably have reached on the material before
— infringement of rules of law concerning appraisal of                    it ? .
     the Community interest: in order to appraise the
     Community interest, the Commission was under an                 2 . If the answer to Question 1 is that the national court
     obligation to take account of the criteria of assessment             has to decide whether the decision of the competent
     laid down in the Community case-law, in particular                   authority was the correct decision does Community
     the judgment in Automec II. By taking the view that                  law require it to answer that question solely on the
     'the Commission is entitled to take other relevant                   basis of the material before the competent authority or
     factors into account in that assessment' and any such                is it obliged to -look at any relevant material coming to
     other elements as it sees fit to consider, the Court of              light after the decision ?
     First   Instance  relieved  the   Commission     of  that
     obligation,                                                     3 . Was it lawful for the Licensing Authority to revoke the
                                                                          licence when the Committee for Proprietary Medicinal
                                                                          Products ( CPMP ) was known to the Licensing
— infringement of Article 86 of the EC Treaty in                          Authority to be soon to produce an opinion as to
     conjunction with Articles 3g, 89 and 155 of the EC                   continuance of the licence ?
     Treaty,
                                                                     (') Council Directive 65/65/EEC of 26 January 1965 on the
                                                                         approximation of provisions laid down by law, regulation or
— breach of the general principles of Community law                      administrative action relating to proprietary medicinal
     (the principle of sound administration; the principle of            products ( English Special Edition 1965—1966, November
     equal treatment and non-discrimination; and the                     1972, p. 20 ).
     principles of legal certainty and protection of
     legitimate expectations ),