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C 146/28 EN Official Journal of the European Union 21.6.

2003

4. The Court of First Instance violated the right to effective 1. Must Article 76 of Council Regulation (EEC) No 1408/71
judicial protection. of 14 June 1971 on the application of social security
schemes to employed persons, to self-employed persons
and to members of their families moving within the
( 1) OJ C 79, 10.3.2001, p. 23.
( 2) OJ C 79, 10.3.2001, p. 24. Community (1) be interpreted as applying only where a
( 3) OJ C 3, 5.1.2002, p. 39. migrant worker is entitled to family benefits under the
( 4) OJ C 3, 5.1.2002, p. 45. legislation of the State of employment and under the
legislation of the State in which the members of his
family are resident?

2. If so, may the bodies of the State of employment suspend


Reference for a preliminary ruling by the Oberlandesge- entitlement to family benefits where they consider that a
richt München — Zivilsenate in Augsburg — by order of refusal to grant family benefits in the State of residence is
that Court of 27 March 2003 in the case of Nürnberger incompatible with Community law?
Allgemeine Versicherungs AG against Portbridge Trans-
port International B.V.
3. If not, does Article 76 of Regulation No 1408/71 permit
(Case C-148/03) the State of employment to apply the rule against
aggregation of benefits where, under the law of the State
(2003/C 146/46) of residence of the family members, the worker’s spouse
receives or is entitled to similar family benefits?

Reference has been made to the Court of Justice of the


European Communities by order of the Oberlandesgericht
München — Zivilsenate in Augsburg — (Munich Higher
Regional Court, Civil Chambers in Augsburg) of 27 March (1 ) as amended and updated by Council Regulation (EEC) No 2001/
83 of 2 June 1983 (OJ L 230, p. 6).
2003, received at the Court Registry on 31 March 2003, for a
preliminary ruling in the case of Nürnberger Allgemeine
Versicherungs AG against Portbridge Transport International
B.V. on the following question:

Do the provisions on jurisdiction contained in other conven-


tions take precedence over the general provisions on jurisdic-
tion in the Brussels Convention even where a defendant
domiciled in the territory of a State which is a party to the
Brussels Convention and against whom an action has been
brought before a court of another State which is a party to
that Convention fails to submit pleas as to the merits of the
case in the proceedings before that court?

Action brought on 3 April 2003 by the Commission of


the European Communities against Ireland

Reference for a preliminary ruling by the Cour de


Cassation of the Grand Duchy of Luxembourg by judg-
ment of that Court of 6 March 2003 in the case of (Case C-154/03)
Caisse Nationale des Prestations Familiales against Ursula
SCHWARZ, née WEIDE

(Case C-153/03) (2003/C 146/48)

(2003/C 146/47)

Reference has been made to the Court of Justice of the


European Communities by judgment of the Cour de Cassation
(Court of Cassation) of the Grand Duchy of Luxembourg of An action against Ireland was brought before the Court of
6 March 2003, received at the Court Registry on 3 April 2003, Justice of the European Communities on 3 April 2003 by the
for a preliminary ruling in the case of Caisse Nationale des Commission of the European Communities, represented by
Prestations Familiales against Ursula SCHWARZ, née WEIDE Karen Banks, acting as agent, with an address for service in
on the following questions: Luxembourg.
21.6.2003 EN Official Journal of the European Union C 146/29

The Applicant claims that the Court should: The Appellant claims that the Court should:

1. declare that, by failing to adopt the laws, regulations


and administrative provisions necessary to comply with — annul the judgment issued by the Court of First Instance
Council Directive 1999/36/EC of 29 April 1999 on of 28 January 2003 in case T-147/00, Servier;
transportable pressure equipment ( 1) and Commission
Directive 2001/2/EC of 4 January 2001 adapting the
latter directive to technical progress ( 2), or in any event — order the defendants to pay the costs.
by failing to notify those provisions to it, Ireland has
failed to fulfil its obligations under the Directives;

2. order Ireland to pay the costs of this action.

Pleas in law and main arguments

Pleas in law and main arguments


a) Fundamental misinterpretation of the division of powers

Article 249 EC, under which a directive shall be binding, as to First, the appellant submits that it is clear from the
the result to be achieved, upon each Member State, carries by assessment in the contested judgment that the Court
implication an obligation on the Member States to observe the of First Instance has fundamentally misinterpreted the
period for compliance laid down in the directive. That period division of powers between the Community and the
expired on 1 December 2000 and 1 July 2001 respectively Member States in relation to harmonisation as regards
without Ireland having enacted the provisions necessary to medicinal products for human use in general and to
comply with the directives referred to in the conclusions of Chapter III of Directive 75/319 ( 2) in particular.
the Commission.
The Court of First Instance takes the view, referring to
the judgment in T-74/00, Artegodan and others, that
( 1) OJ L 138, 1.6.1999, p. 20. Chapter III of Directive 75/319 provides both for ‘exclus-
( 2) OJ L 5, 10.1.2001, p. 4. ive competence of the Member States’ and for ‘exclusive
competence of the Commission’ and that it is therefore
necessary to determine whether there has been a ‘[transfer
of] competence from the Member States concerned to
the Community’.

In taking this stance, the Court of First Instance fails


to understand that the various provisions making up
Appeal brought on 4 April 2003 by the Commission of the Chapter III of Directive 75/319, including Articles 12 and
European Communities against the judgment delivered on 15a, which are particularly at issue here, are all based on
28 January 2003 by the Second Chamber (Extended a system of powers shared between the Member States
Composition) of the Court of First Instance of the and the Community. Chapter III thus gives Member States
European Communities in case T-147/00 between Les the right to initiate certain procedures for granting,
Laboratoires Servier and the Commission of the European varying or withdrawing marketing authorisations, and
Communities lays on the Community, represented by the Commission,
a duty to achieve harmonisation by way of decisions
which the Member States are then required to implement.
(Case C-156/03 P)

b) Legal assessment based on a Commission decision which


(2003/C 146/49) was not the subject of the dispute

Still by way of a preliminary submission, the appellant


would point out that the Commission decision
An appeal against the judgment delivered on 28 January 2003 (C(2000)573) of 9 March 2000 (the ‘2000 decision’)
by the Second Chamber (Extended Composition) of the Court which was the subject of the appeal at first instance, is
of First Instance of the European Communities in case T-147/ based on Article 15a(1) of Directive 75/319. However, it
00 (1) between Les Laboratoires Servier and the Commission must be noted that, rather than directly and specifically
of the European Communities, was brought before the Court interpreting this legal basis, the Court of First Instance
of Justice of the European Communities on 4 April 2003 by confines itself to examining Commission decision
the Commission of the European Communities, represented C(96)3608 final/1 of 9 December 1996 (the ‘1996
by R. Wainwright and H. Støvlbæk, acting as agents, with an decision’) and other provisions of Directive 75/319 in
address for service in Luxembourg. order to interpret Article 15a by pure deduction.