11.

Let us now turn to a consideration of the second question, by which the Court of Justice is asked whether an undertaking which enjoys a dominant position on the market for specific pharmaceutical product in a Member State infringes Article 86 of the Treaty by prohibiting on the basis of its trademark the importation of the above-mentioned product on the ground that it has been repacked without authorization in a new container to which the importer has re-affixed the original mark. According to the statement of the court making the reference, in making that appraisal it is necessary to take account of the fact that such prohibition has in actual fact a ‘restrictive effect on the market’ because the individual quantities marketed and generally used in the importing country are different from those of the producing country and therefore the imported product, in its original packaging, does not make any appreciable progress on the market so that a substantial difference in the selling price to consumers of the product in question is maintained between the Member States, without its being possible to prove that the proprietor of the mark is maintaining the prohibition solely or principally for the purpose of maintaining that price differential. In my view the solution which I have advocated above for the problem raised by the first question renders the second question irrelevant in practical as well as in theoretical terms; nevertheless, I shall submit some short considerations on this point for the Court. It cannot be held that the exercise of a trade-mark right by an undertaking enjoying a dominant position in itself constitutes an abuse within the meaning of Article 86 of the EEC Treaty. It is indeed true that in the context of the provisions on competition the same behaviour can present differing aspects and accordingly be appraised differently for the purposes of Articles 85 and 86, depending on whether such behaviour is attributable to a small or medium-sized undertaking operating in an extremely competitive market or to an undertaking which dominates the market in the products in question. Nevertheless, the foregoing cannot justify a concept of the specific subject-matter of the mark which varies depending on the market position of the undertaking which uses that mark. The exercise of a trade-mark within the limits which are necessary to protect its essential function, as has been set out above, cannot be precluded for a given undertaking merely because it occupies a dominant position. With regard to the protection of the trade-mark, the treatment accorded to undertakings cannot vary. However, where the exercise of the trade-mark right by an undertaking which occupies a dominant position exceeds the limits within which such exercise is justified by Article 36 of the Treaty it may constitute a relevant factor in ascertaining whether there has been an infringement of Article 86, in so far as it promotes behaviour by the undertaking on the market which may be contrary to that article. I have already observed that an endeavour to rely on the trade-mark right, with regard to a product of the kind in question in the present proceedings, in order to achieve a general and complete prohibition on imports solely on the basis of an alteration in the packaging is not justified under Article 36. Such unjustified exercise of a trade-mark right by an undertaking occupying a dominant position may accordingly, together with other factors, constitute an infringement of Article 86 of the Treaty if it is instrumental in allowing that undertaking to exploit the market in which it operates. This seems to me precisely the situation described in the second question, since the undertaking in a dominant position has relied on the different dimensions of the packaging of the product marketed in the Member States in question to exercise its rights as proprietor of the mark in order to shield itself against ‘parallel’ imports, which enables it to maintain on the German market prices which are appreciably higher than those charged by its British subsidiary. The abuse prohibited under Article 86 does not therefore consist merely in restraining competition by the prevention of parallel imports on the basis of the trade-mark. Rather, such an exercise of the mark constitutes a factor in a more complex behaviour-pattern, the decisive factor in which with regard to the infringement of Article 86 consists, in the case described by the court making the reference, in the substantial or even disproportionate difference in the prices charged by the undertaking in the dominant position and those charged for the same product by the related undertaking in another Member State, it being understood, naturally, that there is no objective justification for the higher price prevailing on the German market. It should further be noted that for the purposes of the application of the prohibition laid down in Article 86 of the Treaty proof that the above-described behaviour was intentional is not decisive. The concept of abuse of Article 86 is generally considered to be objective in character. In the Sirena case (judgment of 18 February 1971 in Case 40/70 [1971] ECR 69 et seq. ) the Court of Justice sanctioned this objective concept where it states (paragraph 17 of the decision): ‘As regards the abuse of a dominant position, although the price level of the product may not of itself necessarily suffice to disclose such an abuse, it may, however, if unjustified by any objective criteria, and if it is particularly high, be a determining factor’. Accordingly, in the circumstances outlined by the German court it is unnecessary for the purposes of Article 86 to establish that the proprietor of the mark relies thereon exclusively or principally with the specific intention of maintaining artificially an excessive price differential between the various national markets. It is sufficient that his conduct in fact produces that result. Finally, I should like to observe that it is not for the Court of Justice in the context of a preliminary ruling to consider whether there are present in this case all the conditions necessary to establish that Article 86 has been infringed. This applies in particular to the question whether the prices maintained by Hoffmann-La Roche on the German market are or are not excessive.