Opinion of the Advocate General — ECLI:EU:C:2008:205
Date: 2008-04-08
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Free movement of goods;Commercial policy;Intellectual, industrial and commercial property;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Belgium

Reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel (Belgium) lodged on 5 March 2007 - Beecham Group plc, SmithKline Beecham plc, Glaxo Group Ltd, Stafford-Miller Ltd, GlaxoSmithKline Consumer Healthcare NV and GlaxoSmithKline Consumer Healthcare BV v Andacon NV (Case C-132/07) Language of the case: Dutch Referring court Rechtbank van Koophandel te Brussel Parties to the main proceedings Applicants: Beecham Group plc, SmithKline Beecham plc, Glaxo Group Ltd, Stafford-Miller Ltd, GlaxoSmithKline Consumer Healthcare NV, GlaxoSmithKline Consumer Healthcare BV Defendant: Andacon NV Questions referred Must the first paragraph of Article 9 of Regulation (EC) No 1891/04 1 be construed as prohibiting the competent customs service or the competent customs office from providing, or causing to be provided, information within the terms of Article 9(2) of Regulation (EC) No 1383/03, 2 or arranging, or causing to be arranged, an inspection within the terms of the second subparagraph of Article 9(3) of Regulation (EC) No 1383/03, so long as the application for action made prior to 1 July 2004 has not been supplemented by the declaration referred to in Article 6 of Regulation (EC) No 1383/03? In other words, is the declaration in question a formal condition governing the continued effectiveness of the application for action? Is Article 4(2) of Regulation (EC) No 1383/03 to be construed as allowing the Antwerp customs authorities to grant the trade mark proprietor access to six samples of the goods in order to be able to determine whether or not the goods in question were counterfeit, it being understood that such notification of a sample is not to be treated as equivalent to a thorough inspection within the terms of the second subparagraph of Article 9(3) of Regulation (EC) No 1383/03? If so, ought this granting of access to have occurred within the period of three working days laid down in Article 4(1) of that regulation? Does Regulation (EC) No 1383/03 preclude Belgian customs officials from providing information, acquired in the context of implementation of that regulation, outside the channels envisaged thereby - reference being made to, inter alia, Article 9(2) and the first subparagraph of Article 9(3) of Regulation (EC) No 1383/03 - for example, within the context of the questioning of witnesses or submission of documents ordered by Belgian courts? Does Regulation (EC) No 1383/03 preclude information obtained as a result of the application of Articles 4(2) (see Question 2) and 9(2) and (3) thereof, other than that referred to in the first subparagraph of Article 9(3), or information obtained pursuant to the questioning of witnesses or submission of documents ordered by Belgian courts (see Question 3), from being used in the context of proceedings not designed to secure a declaration that goods are counterfeit, for example in connection with proceedings to counter parallel imports? ____________ 1 - Commission Regulation (EC) No 1891/2004 of 21 October 2004 laying down provisions for the implementation of Council Regulation (EC) No 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (OJ 2004 L 328, p. 16). 2 - OJ L 196, 2.8.2003, p. 7.