# C_2004106EN.01003502.xml

| 30.4.2004 | EN | Official Journal of the European Union | C 106/35 |
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30.4.2004

EN

Official Journal of the European Union

C 106/35

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Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division by order of that court dated 18 November 2003, amended on 27 February 2004, in the case of Master Declan O'Byrne against Aventis Pasteur MSD Ltd and Aventis Pasteur SA.

(Case C-127/04)

(2004/C 106/60)

Reference has been made to the Court of Justice of the European Communities by an order of the High Court of Justice (England & Wales), Queen's Bench Division, dated 18 November 2003, amended on 27 February 2004, which was received at the Court Registry on 8 March 2004, for a preliminary ruling in the case of Master Declan O'Byrne against Aventis Pasteur MSD Ltd and Aventis Pasteur SA on the following questions:

| 1. | On a true interpretation of Article 11 of the Council Directive (1), when a product is supplied pursuant to a contract of sale by a French manufacturer to its wholly owned English subsidiary, and then by the English company to another entity, is the product put into circulation:






  (a) | when it leaves the French company; or |
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1.

On a true interpretation of Article 11 of the Council Directive (1), when a product is supplied pursuant to a contract of sale by a French manufacturer to its wholly owned English subsidiary, and then by the English company to another entity, is the product put into circulation:

1

(a)

when it leaves the French company; or

| (b) | when it reaches the English company; or |
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(b)

when it reaches the English company; or

| (c) | when it leaves the English company; or |
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(c)

when it leaves the English company; or

| (d) | when it reaches the entity receiving the product from the English company? |
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(d)

when it reaches the entity receiving the product from the English company?

| 2. | Where proceedings asserting rights conferred on the claimant pursuant to the Council Directive in respect of an allegedly defective product are instituted against one company (A) in the mistaken belief that A was the producer of the product when in fact the producer of the product was not A but another company (B), is it permissible for a Member State under its national laws to confer a discretionary power on its courts to treat such proceedings as ‘proceedings against the producer’ within the meaning of Article 11 of the Council Directive? |
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2.

Where proceedings asserting rights conferred on the claimant pursuant to the Council Directive in respect of an allegedly defective product are instituted against one company (A) in the mistaken belief that A was the producer of the product when in fact the producer of the product was not A but another company (B), is it permissible for a Member State under its national laws to confer a discretionary power on its courts to treat such proceedings as ‘proceedings against the producer’ within the meaning of Article 11 of the Council Directive?

| 3. | Does Article 11 of the Council Directive, correctly interpreted, permit a Member State to confer a discretionary power on a court to allow B to be substituted for A as a defendant to proceedings of the kind referred to in Question 2 above (‘the relevant proceedings’) in circumstances where:






  (a) | the period of 10 years referred to in Article 11 has expired; |
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3.

Does Article 11 of the Council Directive, correctly interpreted, permit a Member State to confer a discretionary power on a court to allow B to be substituted for A as a defendant to proceedings of the kind referred to in Question 2 above (‘the relevant proceedings’) in circumstances where:

(a)

the period of 10 years referred to in Article 11 has expired;

| (b) | the relevant proceedings were instituted against A before the 10 year period expired; and |
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(b)

the relevant proceedings were instituted against A before the 10 year period expired; and

| (c) | no proceedings were instituted against B before the expiry of the 10 year period in respect of the product which caused the damage alleged by the claimant? |
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(c)

no proceedings were instituted against B before the expiry of the 10 year period in respect of the product which caused the damage alleged by the claimant?

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(1)  Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ L 210, 07.08.1985, p. 29).

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