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6.9.

2003 EN Official Journal of the European Union C 213/9

Pleas in law and main arguments attempt to clarify the scientific and political complexities of
this case as soon as possible, always keeping in mind the
fundamental objective of protecting public health. The CFI’s
findings can also be considered to be insufficiently motivated.
(1) Error in the interpretation and application of Regulation
2377/90 ( 2) and, in particular, Article 14 thereof
(4) Error in the interpretation and application of
Article 228 EC concerning the non-contractual liability
The findings of the CFI rest clearly on the interpretation that of the Community
Article 14 of Regulation 2377/90 gives the applicants an
enforceable right to have a decision taken on their applications The Commission submits that the CFI committed two basic
before January 2000 and, secondly, imposes on the Com- legal errors. First, it failed to take into account the degree of
mission an absolute obligation to act by completing the discretion enjoyed by the Commission in these cases and held
scientific evaluation and by taking a final decision in all without proper consideration that the alleged breach of the
applications concerning substances already in use in the principle of sound administration was ‘clear and serious’.
Member States on the date of entry into force of the Regulation Second, it misinterpreted the provisions of Regulation 2377/
before 1 January 2000, or, failing this, to arrange for a 90 and its relationship with other provisions of community
deferral of that deadline. The Commission submits that this law, in particular directives 81/851 (3) and 96/22 (4), by
interpretation is a fundamental error of law that permeates the accepting causality between the alleged damage and the
entire reasoning on which the CFI’s judgment is based. Commission’s ‘inaction’.

(5) Finally, the Commission submits that the CFI made an


error in law in finding that the Commission is liable for
(2) Errors of law in the interpretation and application of the damages to Pharmacia by failing to take into account its
principle of sound administration different position compared with the position of the applicant
Ceva.
It is submitted that the characterisation of the Commission’s
inaction by the CFI as being such that it gave rise to damages (1 ) OJ C 45, 10/02/2001, p. 19.
for a clear and serious breach of the principle of sound (2 ) Council Regulation (EEC) no 2377/90 of 26 June 1990 laying
administration is based on the following errors regarding the down a Community procedure for the establishment of maximum
interpretation and application of that principle: residue limits of veterinary medicinal products in foodstuffs of
animal origin OJ L 224, 18/08/1990, p. 1.
(3 ) Council Directive 81/851/EEC of 28 September 1981 on the
— failure to assess the time taken in relation to the different approximation of the laws of the Member States relating to
procedural stages involved; veterinary medicinal products OJ L 317, 06/11/1981, p. 1.
(4 ) Council Directive 96/22/EC of 29 April 1996 concerning the
prohibition on the use in stockfarming of certain substances
— failure to give due weight to the complexity of the having a hormonal or thyrostatic action and of ß-agonists, and
progesterone file in assessing the time taken by the repealing Directives 81/602/EEC, 88/146/EEC and 88/299/EEC
Commission; OJ L 125, 23/05/1996, p. 3.

— placing undue emphasis on the time limit found in


Article 14 of Regulation 2377/90 and its relation to the
principle of sound administration;

— failure to take due account of the balancing of interests


that the Commission had to undertake. Reference for a preliminary ruling by the VAT and Duties
Tribunals, Manchester Tribunal Centre, by direction of
that court dated 16 May 2003, in the case of University
of Huddersfield Higher Education Corporation against
Commissioners of Customs and Excise
(3) Misconstrual of the evidence and inadequate reasoning
(Case C-223/03)
The Commission submits that the CFI fundamentally miscon-
strued the factual and scientific record, in the sense that the (2003/C 213/15)
claimed ‘inaction’ of the Commission to place progesterone in
one of the annexes to Regulation 2377/90 before 1 January
2000 was fully justified by the prevailing circumstances of this
case and the undisputed scientific uncertainty and the potential Reference has been made to the Court of Justice of the
for abuse of progesterone. Far from staying inactive, the European Communities by a direction of the VAT and Duties
Commission has been taking a number of concrete steps in its Tribunals, Manchester Tribunal Centre, dated 16 May 2003,
C 213/10 EN Official Journal of the European Union 6.9.2003

which was received at the Court Registry on 22 May 2003, for European Communities in Case T-125/01 between José Martí
a preliminary ruling in the case of University of Huddersfield Peix SA and the Commission of the European Communities
and Commissioners of Customs and Excise on the following was brought before the Court of Justice of the European
questions: Communities on 23 May 2003 (fax of 22 May) by José Martí
Peix SA, represented by R. García-Gallardo and D. Domínguez
Pérez, lawyers.
Where:

1. a university waives its right to exemptions from VAT in


respect of any supplies of certain real property owned by The applicant claims that the Court should:
it and leases the property to a trust set up and controlled
by the university
1. declare the appeal admissible;
2. the trust waives its right to exemption from VAT in
respect of any supplies of the real property in question
and grants to the university an underlease of the property 2. set aside the judgment of the Third Chamber of the Court
of First Instance of 13 March 2003 in Case T-125/01
José Martí Peix SA v Commission of the European
3. the lease and underlease were entered into and carried
Communities;
out by the University with the sole intention of obtaining
a fiscal advantage and had no independent business
purpose 3. order the Commission to pay the entirety of the costs
incurred in the proceedings before the Court of Justice as
4. the lease and leaseback amounted to, and was intended well as those incurred in the proceedings before the Court
by the University and the trust to be, a deferral scheme of First Instance.
(that is, a scheme for the deferral of payment of VAT)
with a built-in feature that allowed an absolute tax saving
at a later date

(a) are the lease and the underlease taxable supplies for
the purposes of the Sixth VAT Directive ( 1)? Pleas and main arguments

(b) Do they qualify as economic activities within the


meaning of the second sentence of Article 4(2) of
the Sixth VAT Directive? The Court of First Instance incorrectly interpreted the
expression ‘continuous irregularity’ referred to in Article 3 of
Council Regulation (EC, Euratom) No 2988/95 of 18 Decem-
( 1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the ber 1995 on the protection of the European Communities
harmonization of the laws of the Member States relating to financial interests (OJ 1995 L 312, p. 1). As a result of the
turnover taxes — Common system of value added tax: uniform
broad construction given by the Court of First Instance to that
basis of assessment OJ L 145, 13.06.1977, p. 1-40.
expression, the principle of prescription is rendered devoid of
practical effect and the interpretation is incompatible with the
substance of that principle, which is to penalise an authority’s
failure to take any action in respect of an irregularity. The
point of prescription is to safeguard the principle of legal
certainty and to guarantee the principle of sound administrat-
ive practice. The principle of Community solidarity must be
interpreted correctly and cannot be used in order to render the
Appeal brought on 23 May 2003 (fax of 22 May) by José principle of prescription inapplicable.
Martí Peix SA against the judgment delivered on 13 March
2003 (not yet published in the ECR) by the Third
Chamber of the Court of First Instance of the European
Communities in Case T-125/01 between José Martí Peix
The consequences of that incorrect interpretation are serious,
SA and the Commission of the European Communities inasmuch as Regulation No 2988/95 is a regulation of
general application where expenditure is financed from the
(Case C-226/03 P) Community budget. The Court of First Instance’s interpretation
of the Regulation must therefore be followed at national level
by the various authorities involved, in spite of the fact that it
(2003/C 213/16) entails restriction of the protection enjoyed by every citizen
vis-à-vis public authorities.

An appeal against the judgment delivered on 13 March 2003


by the Third Chamber of the Court of First Instance of the