You are on page 1of 2

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.
C 146/30 EN Official Journal of the European Union 21.6.2003

The Court of First Instance’s assessment in the contested The applicant claims that the Court should:
judgment relates exclusively to the Commission decision
of 1996, although this decision is manifestly not the
instrument contested at first instance. 1. annul, in the following calls for applications:
It is clear that Article 12 of Directive 75/319, on which
the 1996 decision is based, and which is examined by the — call for applications for the position of Data-
Court of First Instance, is not the legal basis for the 2000 protection officer. Ref.: 03/EJ/07 (2003/C 34 A/01)
decision. OJ C 34 A of 13.2.2003;
Moreover, Article 12 is essentially assessed by way of a
comparison with Article 10(2) of Directive 75/319,
— call for applications for the position of Legal officer.
although the latter does not form the legal basis for the
Ref.: 03/EJ/11 (2003/C 34 A/05) OJ C 34 A of
2000 decision either, or of the 1996 decision, examined
13.2.2003;
by the Court of First Instance.
Thus, the Court of First Instance’s conclusion that the
Commission was not competent to adopt the 2000 — call for applications for the position of Press officer.
decision is based on an assessment relating to a decision Ref.: 03/EJ/13 (2003/C 34 A/07) OJ C 34 A of
which was not contested at first instance and is founded 13.2.2003;
essentially on provisions, namely Articles 10 and 12 of
Directive 75/319, which do not form the legal basis for
the 2000 decision. In the appellant’s view, this assessment — call for applications for the position of Secretary to
constitutes in itself a failure to define the status of the General Administration. Ref.: 03/EJ/14 (2003/
Article 15a(1) of Directive 75/319 and thus a failure to C 34 A/08) OJ C 34 A of 13.2.2003;
take account of it.
In the appellant’s view, the two errors described above — call for applications for the position of Librarian/
are fundamental and linked to the extent that they vitiate Archivist. Ref.: 03/EJ/12 (2003/C 34 A/06) OJ C 34
the entire legal assessment leading the Court of First A of 13.2.2003;
Instance to deduce that the Commission was not com-
petent to adopt the 2000 decision.
— call for applications for the position of Accounting
Lastly, and solely in the alternative, the appellant main- officer. Ref.: 03/EJ/08 (2003/C 34 A/02) OJ C 34 A
tains that the Court of First Instance’s reasoning to the of 13.2.2003;
effect that Article 15a of Directive 75/319 does not cover
marketing authorisations harmonised by way of the
purely consultative procedure within the meaning of — call for applications for the position of IT-informat-
Articles 12 and 13 of the directive also constitutes a ics expert (webmaster) of the European judicial
misinterpretation of that article. network. Ref.: 03/EJ/09 (2003/C 34 A/03) OJ C 34 A
of 13.2.2003,
( 1) OJ C 247, 26.8.2000, p. 29.
( 2) Second Council Directive 75/319/EEC of 20 May 1975 on the
approximation of provisions laid down by Law, Regulation or the paragraph referring to the documents to be submitted
Administrative Action relating to proprietary medicinal products in English by applicants submitting their application in
(OJ L 147, 9.6.1975, p. 13). another language; and the paragraphs relating to the
linguistic knowledge required of candidates, from each of
the calls for applications set out below:

— in the call for applications for the position of Data-


protection officer, as condition No 17: ‘Excellent
Action brought on 8 April 2003 by Kingdom of Spain knowledge of English and French. Ability to work in
against Eurojust other European Union languages would be an asset’.

(Case C-160/03) — in the call for applications for the position of Law
officer, as condition No 19: ‘Excellent knowledge of
(2003/C 146/50) English and French. Ability to work in other Euro-
pean Union languages would be an asset’.

An action against Eurojust was brought before the Court of — in the call for applications for the position of Press
Justice of the European Communities on 8 April 2003 by the officer, as condition No 12: ‘Ability to speak at least
Kingdom of Spain, represented by L. Fraguas Gadea, with an English and French. Knowledge of other official
address for service in Luxembourg. European Union languages would be an asset’.