Opinion of the Advocate General — ECLI:EU:C:2001:412
Date: 2001-07-12
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Intellectual, industrial and commercial property;Approximation of laws;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Austria;United Kingdom

Summary of the Judgment 
Free movement of goods — Industrial and commercial property — Trade mark — 
Approximation of laws — Trade marks — Directive 89/104 — Product put on the 
market in a Member State by the trade mark owner or with bis consent — Importation, 
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SUMMARY — CASE C-443/99 
after repackaging and reaffixing of the trade mark, into another Member State — 
Opposition by the trade mark owner — Permissibility —· Condition — No artificial 
partitioning of the markets between Member States — Criteria of assessment in the case 
of parallel importation of pharmaceutical products 
(Art. 30 EC; Council Directive 89/104, Art. 7(2)) 
Whilst the proprietor of a trade mark right 
which is protected in two Member States at 
the same time is justified, for the purposes 
of the first sentence of Article 30 EC and 
Article 7(2) of First Directive 89/104 on 
trade marks, in opposing a product to 
which the trade mark has lawfully been 
applied in one of those States from being 
put on the market in the other Member 
State after it has been repacked in new 
packaging to which the trade mark has 
been affixed by a third party, such opposi­
tion will, however, constitute a disguised 
restriction on trade between Member 
States, within the meaning of the second 
sentence of Article 30 EC, where it is 
established, in particular, that the use of 
the trade mark right by the proprietor, 
having regard to the marketing system 
which he has adopted, will contribute to 
the artificial partitioning of the markets 
between Member States. In the case of 
parallel imports of pharmaceutical prod­
ucts, in certain circumstances, where rep­
ackaging is necessary to allow the product 
to be marketed in the importing State, 
opposition to the repackaging is to be 
regarded as constituting such artificial 
partitioning. 
Replacement packaging of pharmaceutical 
products rather than simply sticking labels 
on those packages is objectively necessary 
if, without such repackaging, effective 
access to the market concerned, or to a 
substantial part of that market, must be 
considered to be hindered as the result of 
strong resistance from a significant propor­
tion of consumers to relabelled phar­
maceutical products. 
(see paras 23-24, 33, operative part) 
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