Opinion of the Advocate General — ECLI:EU:C:2000:659
Date: 2000-11-30
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Intellectual, industrial and commercial property;Approximation of laws;Plant health legislation;Patents
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 
1. Approximation of laws — Uniform laws — Industrial and commercial property — 
Patent law — Supplementary protection certificate for plant protection products — 
Conditions of obtaining — Obtaining of a first authorisation to place the product on 
the market as a plant protection product — Product — Definition 
(Parliament and Council Regulation No 1610/96, Art. 3) 
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SUMMARY — CASE C-258/99 
2. Approximation of laws — Uniform laws — Industrial and commercial property — 
Patent law — Supplementary protection certificate for plant protection products — 
Conditions of obtaining — Product protected by a basic patent — Obtaining of a 
first authorisation to place the product on the market as a plant protection product — 
Product differing from a previously authorised product only in the proportion of the 
active chemical compound to the impurity it contains 
(Parliament and Council Regulation No 1610/96, Art. 3(1)(a) and (a)) 
1. The concept of a product within the 
meaning of Article 3 of Regulation 
No 1610/96 concerning the creation 
of a supplementary protection certifi­
cate for plant protection products cov­
ers chemical elements and their com­
pounds, as they occur naturally or by 
manufacture, including any impurity 
inevitably resulting from the manufac­
turing process, which have general or 
specific action against harmful organ­
isms or on plants, parts of plants or 
plant products. Two products which 
differ only in the proportion of the 
active chemical compound to the 
impurity they contain, one having a 
greater percentage of the impurity than 
the other, must be regarded as the same 
product within the meaning of that 
article. The fact that a marketing 
authorisation must be obtained for 
the new plant protection product 
which has a different proportion of 
active chemical compound to impurity 
from that of the former plant protec­
tion product is not relevant for the 
purposes of establishing whether or not 
the constituent products of those plant 
protection products are the same. 
(see paras 25, 29, 32 
and operative part 1-3) 
2. The conditions laid down in Art­
icle 3(1)(a) and (d) of Regulation 
No 1610/96 concerning the creation 
of a supplementary protection certifi­
cate for plant protection products are, 
in any event, not all satisfied where a 
product, as a plant protection product, 
manufactured according to a patented 
process and the subject of a marketing 
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BASF 
authorisation, differs from a previously 
authorised product, as a plant protec-
tion product, only in the proportion of 
the active chemical compound to the 
impurity it contains, the percentage of 
impurity being greater in the older 
product than in the new one, and 
where that process patent has been 
designated as the basic patent. 
(see para. 38 and operative part 4) 
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