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C 112/18 EN Official Journal of the European Union 10.5.

2003

The Commission of the European Communities claims that Action brought on 19 March 2003 by the Commission of
the Court should: the European Communities against the French Republic

— declare that, by failing to adopt the laws, regulations


and administrative provisions necessary to comply with (Case C-122/03)
Commission Directive 2000/52/EC of 26 July 2000 on
the transparency of financial relations between Member
States and public undertakings as well as on financial (2003/C 112/32)
transparency within certain undertakings (1) or, in any
event, by failing to notify them to the Commission,
France has failed to fulfil its obligations under that
directive;
An action against the French Republic was brought before the
— order France to pay the costs. Court of Justice of the European Communities on 19 March
2003 by the Commission of the European Communities,
represented by H. Støvlbæk and B. Stromsky, acting as Agents,
with an address for service in Luxembourg.
Pleas in law and main arguments

The period prescribed for transposition expired on 31 January The applicant claims that the Court should:
2001.
1. Declare that, by imposing, pursuant to Article R. 5142-
( 1) OJ L 193 of 29 July 2002, p. 78. 15 of the Public Health Code, on traders importing or
distributing in France medicinal products which are
already covered by a marketing authorisation for the
French or Community market the requirement that they
submit, at the request of the monitoring authorities,
either a certified copy issued by the French agency for
Action brought on 18 March 2003 by the Commission of health products sanitary safety (FAHPSS) of the French
the European Communities against the Kingdom of Spain marketing authorisation or of the registration of the
medicinal product, or a document issued by the FAHPSS
(Case C-120/03) attesting to the fact that the imported medicinal product
has obtained a marketing authorisation issued by the
(2003/C 112/31) European Community, the French Republic has failed to
fulfil its obligations under Article 28 of the EC Treaty;

An action against the Kingdom of Spain was brought before 2. Order the French Republic to pay the costs.
the Court of Justice of the European Communities on 18 March
2003 by the Commission of the European Communities,
represented by K. Banks and J.L. Buendía Sierra, acting as
Agents, with an address for service in Luxembourg.
Pleas in law and main arguments

The applicant claims that the Court should:


So far as concerns the importation into France of pharmaceuti-
1. Declare that, by failing to adopt the laws, regulations
cal products already covered by a marketing authorisation for
and administrative provisions necessary to comply with
the French or Community market, Article R. 5142-15 of the
Directive 98/71/EC ( 1) of the European Parliament and of
Public Health Code requires the submission at the request of
the Council of 13 October 1998 on the legal protection
customs officers of either a certified copy of the marketing
of designs or, in any event, by failing to communicate
authorisation or of the registration of the medicinal product
them to the Commission, the Kingdom of Spain has
or a document attesting to the fact that the imported medicinal
failed to fulfil its obligations under that directive;
product has obtained a marketing authorisation issued by the
2. Order the Kingdom of Spain to pay the costs. European Community, each of those documents being issued
by the FAHPSS.

Pleas in law and main arguments


The effects of that provision on traders wishing to import and
distribute pharmaceutical products in France may be resumed
The period prescribed for implementation of the directive as follows: (i) formalities, costs and the time entailed by the
expired on 28 October 2001. granting procedure are imposed on traders which they are
obliged to bear, on pain of sanctions, throughout its term; (ii)
( 1) OJEC L 289 of 28 October 1998, p. 28. those same traders are obliged to be constantly in possession
of documents which could be potentially numerous and
voluminous.
10.5.2003 EN Official Journal of the European Union C 112/19

Accordingly, the Commission is of the view that Pleas in law and main arguments
Article R. 5142-15 of the French Public Health Code is such
as to hinder, directly and indirectly, actually or potentially,
intra-Community trade and that it therefore amounts to a
measure of an effect equivalent to a quantitative restriction, In August 1997 Irish Sugar complied with the Commission
prohibited by Article 28 of the EC Treaty. decision 97/624/EC of 14 May 1997 and paid the fine imposed
on it. The Court of First Instance subsequently reduced the fine
by judgment of 7 October 1999. When submitting details
The French legislation is discriminatory and can therefore be about its bank account so that the part of the fine unduly
justified only on grounds of public interest as provided for in levied could be reimbursed, Greencore (Irish Sugar’s mother
Article 30 of the EC Treaty. company) also asked for confirmation that interest would be
paid. On 4 January 2000 the Commission reimbursed the
principal amount without interest thus, in the Commission’s
However, even leaving aside its discriminatory character, it view, refusing to grant the request concerning interest.
must be pointed out that the measure in issue is unjustifiable.
In the internal market, the mere fact that a Community
product originates abroad cannot give rise to a suspicion that
it is non-compliant. Greencore did not react until after the judgment in case T-171/
99 ‘Corus’ of 10 October 2001, in which the Court of First
Instance stated that the Commission would have to pay interest
Even supposing that that measure could have been prompted on a fine unduly levied. On 1 November 2001, almost two
by the objective of protecting human health and life, the years after reimbursement of the part of the fine unduly levied,
objective of verifying whether a marketing authorisation has Greencore, referring to the ‘Corus’ judgment, requested the
been granted could be attained as effectively by a system which payment of interest on the amount of the fine reimbursed. By
is less of an obstacle to intra-Community trade, for example letter of 11 February 2002 the Accounting Officer of the
by a system based on the checking of the number of the Commission informed Greencore that, when it requested the
marketing authorisation appearing on the external packaging payment of interest on the amount of the fine unduly levied
of the medicinal product. on 27 October 1999, the Commission only reimbursed the
principal sum and had, therefore, already refused to pay
interest at that date.

Before the Court of First Instance the Commission raised an


objection of inadmissibility arguing that the letter of 11 Febru-
Appeal brought on 19 March 2003 by the Commission of ary 2002 had not in any way changed the applicant’s legal
the European Communities against the order made on position. The Commission submitted that the letter merely
7 January 2003 by the Second Chamber of the Court of informed the applicant that it had failed to attack the
First Instance of the European Communities in case T-135/ Commission decision of 4 January 2000 not to grant interest
02 (1) between Greencore Group plc and the Commission and was therefore precluded from attacking that decision
of the European Communities now, taking advantage of a judgment obtained by another
undertaking in a separate Court procedure.
(Case C-123/03 P)

(2003/C 112/33) The Commission submits that the Court of First Instance
committed an error in law in rejecting the objection of
inadmissibility. In the Commission’s view the Court of First
Instance infringed Article 230 EC by declaring admissible an
An appeal against the order made on 7 January 2003 by the action for annulment against an act that is not challengeable,
Second Chamber of the Court of First Instance of the European since it does not bring about a distinct change in the applicant’s
Communities in case T-135/02 between Greencore Group plc legal position. According to the Commission the letter of
and the Commission of the European Communities, was 11 February is a simple information telling the applicant that
brought before the Court of Justice of the European Communi- it should have attacked the decision of 4 January 2000 refusing
ties on 19 March 2003 by the Commission of the European interest. It does not alter the applicant’s position in any way,
Communities, represented by K. Wiedner, acting as agent, with since the Commission does not consider or re-consider the
an address for service in Luxembourg. applicant’s right to receive payment of interest. There are,
furthermore, no substantial new facts which should have
prompted the Commission to re-examine its initial position.
The Appellant claims that the Court should:

— annul the order of 7 January and declare the application


inadmissible; (1 ) OJ C 169, 13.07.2002, p. 38.

— order the applicant to bear the costs incurred before the


Court of First Instance as well as the Court of Justice.