Order — ECLI:EU:C:2014:92
Date: 2014-02-13
Language of the case: Portuguese
Court formation: Eighth Chamber
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary — Order of the Court (Eighth Chamber), 13 February 2014 1. Questions referred for a preliminary ruling — Reference to the Court — Court or tribunal for the purposes of 267 TFEU — Definition (Art. 267 TFEU) 2. Approximation of laws — Uniform legislation — Industrial and commercial property — Patent right — Supplementary protection certificate for medicinal products — Period of validity of a certificate — Maximum period of exclusivity (European Parliament and Council Directive 469/2009, Recital 9 and Art. 13) 1. An arbitral tribunal, established on a legislative basis, which has permanent compulsory jurisdiction to determine, at first instance, disputes involving industrial property rights pertaining to reference medicinal products and generic drugs on the basis of national industrial property law, which observes the principle of equal treatment and the adversarial principle in the treatment of parties, which applies national legislation which defines and frames the procedural rules, whose decisions have the same effects as judgments handed down by the ordinary courts and, lastly, whose arbitrators are subject to the same obligations of independence and impartiality as judges belonging to the ordinary courts, must be considered to be a court or tribunal for the purposes of Article 267 TFEU. (see paras 19, 23-25) 2. Article 13 of Regulation No 469/2009 concerning the supplementary protection certificate for medicinal products, read in conjunction with recital 9 in the preamble to the same regulation, must be interpreted as precluding the holder of both a patent and a supplementary protection certificate from relying on the entire period of validity of such a certificate, calculated in accordance with Article 13, in a situation where, pursuant to such a period, it would enjoy a period of exclusivity as regards an active ingredient, of more than 15 years from the first authorisation to be placed on the market, in the European Union, of a medicinal product consisting of that active ingredient, or containing it. (see para. 34, operative part)