28.4.2007

Official Journal of the European Union

C 95/22

Action brought on 15 February 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-88/07)

(2007/C 95/39)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: S. Pardo Quintillán and A. Alcover San Pedro, Agents)

Defendant: Kingdom of Spain

Form of order sought

—

Declare that,

—

by withdrawing from the market a significant number of products based on vegetable matter, lawfully produced and/or marketed in another Member State, under an administrative practice consisting in withdrawing from the market any product containing vegetable matter not included in the annex to the Ministerial Order of 3 October 1873 on the ground that it is regarded as a medicinal product marketed without the requisite authorisation,

—	and also by not having communicated that measure to the Commission,

the Kingdom of Spain has failed to fulfil its obligations under Articles 28 EC and 30 EC and also Articles 1 and 4 of Decision No 3052/95/EC (1);

—	order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Commission maintains that by withdrawing from the market products manufactured on the basis of bananas, lawfully produced or marketed in other Member States, under an administrative practice which characterises as a medicinal product (and as such subject to the requisite authorisation) any product containing vegetable matter not included in the annex to the Ministerial Order of 3 October 1973, and by not having notified to the Commission the measures taken to withdraw the products concerned from the market within 45 days of the date on which such measures were taken, the Kingdom of Spain has failed to fulfil its obligations under Articles 28 and 30 of the Treaty and Articles 1 and 4 of Decision No 3052/95/EC.

(1) Decision No 3052/95/EC of the European Parliament and of the Council of 13 December 1995 establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community (OJ 1995 L 321, p. 1).