Judgment of the Court (Fifth Chamber) 25 April 2002 in Case C-154/00: Commission of the European Communities v Hellenic Republic (Failure by a Member State to fulfil its obligations — Directive 85/374/EEC — Product liability — Incorrect transposition)
Date: 2002-06-15
Institutions: Court of Justice
Subjects: European Commission, Greece, action for failure to fulfil an obligation, consumer protection, defective product, product quality

C 144/6

EN

Official Journal of the European Communities

15.6.2002

JUDGMENT OF THE COURT

23 April 2002

in Case C-143/00 (Reference for a preliminary ruling from
the High Court of Justice): Boehringer Ingelheim KG,
Boehringer Ingelheim Pharma KG v Swingward Ltd, and
between Boehringer Ingelheim KG, Boehringer Ingelheim
Pharma KG and Dowelhurst Ltd, and between Glaxo
Group Ltd and Swingward Ltd, and between Boehringer
Ingelheim KG, Boehringer Ingelheim Pharma KG and
Dowelhurst Ltd, and between Glaxo Group Ltd, The
Wellcome Foundation Ltd and Dowelhurst Ltd, and
between SmithKline Beecham plc, Beecham Group plc,
SmithKline & French Laboratories Ltd and Dowelhurst
Ltd and between Eli Lilly and Co. and Dowelhurst Ltd (1)

(Trade marks — Directive 89/104/EEC — Article 7(2) —
Exhaustion of the rights conferred by the trade mark
importation —
— Pharmaceutical products — Parallel

Repackaging of the trade-marked product)

(2002/C 144/08)

(Language of the case: English)

In Case C-143/00: Reference to the Court under Article 234
EC by the High Court of Justice of England and Wales,
Chancery Division (United Kingdom), for a preliminary ruling
in the proceedings pending before that court between Boeh-
ringer Ingelheim KG, Boehringer Ingelheim Pharma KG and
Swingward Ltd, and between Boehringer Ingelheim KG, Boeh-
ringer Ingelheim Pharma KG and Dowelhurst Ltd, and between
Glaxo Group Ltd and Swingward Ltd, and between Boehringer
Ingelheim KG, Boehringer Ingelheim Pharma KG and Dowel-
hurst Ltd, and between Glaxo Group Ltd, The Wellcome
Foundation Ltd and Dowelhurst Ltd, and between SmithKline
Beecham plc, Beecham Group plc, SmithKline & French
Laboratories Ltd and Dowelhurst Ltd and between Eli Lilly and
Co. and Dowelhurst Ltd, on the interpretation of Article 7(2)
of First Council Directive 89/104/EEC of 21 December 1988
to approximate the laws of the Member States relating to trade
marks (OJ 1989 L 40, p. 1), as amended by the Agreement on
the European Economic Area of 2 May 1992 (OJ 1994 L 1,
p. 3), and of Articles 28 EC and 30 EC, the Court, composed
of: G. C. Rodrı´guez Iglesias, President, P.
Jann (President
of Chamber), C. Gulmann (Rapporteur), D. A. O. Edward,
M. Wathelet, R. Schintgen, V. Skouris, J. N. Cunha Rodrigues
and C. W. A. Timmermans, Judges; F. G. Jacobs, Advocate
General; D. Louterman-Hubeau, Head of Division, for the
Registrar,has given a judgment on 23 April 2002, in which it
has ruled:

States relating to trade marks, as amended by the Agreement
on the European Economic Area of 2 May 1992, must be
interpreted as meaning that a trade mark proprietor may rely
on its trade mark rights in order to prevent a parallel importer
from repackaging pharmaceutical products unless the exercise
of those rights contributes to artificial partitioning of the
markets between Member States.

2.

Replacement packaging of pharmaceutical products is objectively
necessary within the meaning of the Court’s case-law 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
proportion of consumers to relabelled pharmaceutical products.

3. A parallel importer must, in any event, in order to be entitled
to repackage trade-marked pharmaceutical products, fulfil the
requirement of prior notice. If the parallel importer does not
satisfy that requirement, the trade mark proprietor may oppose
the marketing of the repackaged pharmaceutical product. It is
incumbent on the parallel importer himself to give notice to the
trade mark proprietor of the intended repackaging. In the event
of dispute, it is for the national court to assess, in the light of
all the relevant circumstances, whether the proprietor had a
reasonable time to react to the intended repackaging.

(1) OJ C 233 of 12.8.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

25 April 2002

in Case C-154/00: Commission of the European Communi-
ties v Hellenic Republic (1)

(Failure by a Member State to fulfil its obligations —
Directive 85/374/EEC — Product liability — Incorrect
transposition)

(2002/C 144/09)

(Language of the case: Greek)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

1. Article 7(2) of First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member

In Case C-154/00, Commission of the European Communities
(Agent: M. Patakia) v Hellenic Republic (Agents: A. Samoni-

15.6.2002

EN

Official Journal of the European Communities

C 144/7

Rantou, G. Alexaki and S. Vodina): Application for a declar-
ation that, by not providing in the national legislation transpos-
ing Council Directive 85/374/EEC of 25 July 1985 on the
approximation of the laws, regulations and administrative
provisions of
the Member States concerning liability for
defective products (OJ 1985 L 210, p. 29) for the threshold of
EUR 500 laid down in Article 9(b) of that directive, the
Hellenic Republic has transposed that provision only partially,
the Court (Fifth Chamber), composed of: P. Jann (Rapporteur),
President of the Chamber, S. von Bahr, D. A. O. Edward, A. La
Pergola and C. W. A. Timmermans, Judges; L. A. Geelhoed,
Advocate General; Lynn Hewlett, Principal Administrator, for
the Registrar, has given a judgment on 25 April 2002, in
which it:

ruling in the proceedings pending before that court between
Johann Franz Duchon and Pensionsversicherungsanstalt der
Angestellten, on the interpretation of Article 48 and Article 51
EC Treaty (now, after amendment, Article 39 and Article 42
EC), and on the interpretation and validity of Article 9a and
Article 94 of Council Regulation (EEC) No 1408/71 of
14 June 1971 on the application of social security schemes to
employed workers, to self-employed workers and to members
of their families moving within the Community, as amended
and updated by Regulation (EC) No 118/97 of the Council of
2 December 1996 (OJ 1997 L 28, p. 1), the Court (Fifth
Chamber), composed of: P. Jann, President of the Chamber,
S. von Bahr, and M. Wathelet (Rapporteur), Judges; F. G. Jacobs,
Advocate General; R. Grass, Registrar, has given a judgment
on 18 April 2002, in which it has ruled:

1. Declares that, by not making provision in the national
legislation transposing Council Directive 85/374/EEC of
25 July 1985 on the approximation of the laws, regulations
and administrative provisions of the Member States concerning
liability for defective products for the threshold of EUR 500
referred to in Article 9(b) of the Directive, the Hellenic Republic
has failed to fulfil its obligations under that provision;

1.

2. Orders the Hellenic Republic to pay the costs.

(1) OJ C 176 of 24.6.2000.

The situation of a person who is a national of a Member State,
who, before the accession of that State to the European Union,
was employed in another Member State where he was the victim
of an accident at work, and who, after the accession of his home
State, applies to the authorities in that State for a pension for
incapacity for work as a result of that accident falls within the
scope of application of Council Regulation (EEC) No 1408/71
of 14 June 1971 on the application of social security schemes
to employed persons, to self-employed persons and to members
of their families moving within the Community, as amended
and updated by Council Regulation (EC) No 118/97 of
2 December 1996.

JUDGMENT OF THE COURT

(Fifth Chamber)

18 April 2002

in Case C-290/00 (Reference for a preliminary ruling
from the Oberster Gerichtshof): Johann Franz Duchon v
Pensionsversicherungsanstalt der Angestellten (1)

(Social security for migrant workers — Article 48 and
Article 51 of the EC Treaty (now, after amendment,
Article 39 and Article 42 EC) — Article 9a and 94 of
Regulation (EEC) No 1408/71 — Accident at work occurring
in another Member State before the entry into force of the
regulation in the worker’s home State — Incapacity for
work)

(2002/C 144/10)

(Language of the case: German)

2. Article 94(3) of Regulation No 1408/71, as amended and
updated by Regulation No 118/97, read in conjunction with
the EC Treaty (now, after amendment,
Article 48(2) of
Article 39(2) EC), must be interpreted as precluding a national
provision such as Paragraph 235(3)(a) of the Allgemeines
Sozialversicherungsgesetz, which provides an exception to the
requirement of a qualifying period as a condition for the
acquisition of the right to an occupational disability pension
where that disability is the result of an accident at work —
which occurred, in the case in point, before the date of entry
into force of that regulation in the Member State concerned —
only in the event that the victim had been insured compulsorily
or privately at the time of the accident under the legislation of
that State, to the exclusion of the legislation of all other
Member States.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-290/00: Reference to the Court under Article 234
EC by the Oberster Gerichtshof (Austria) for a preliminary

3. Articles 48(2) and 51 of the EC Treaty (now, after amendment,
Articles 39(2) and 42 EC) must be interpreted as meaning that
they preclude a provision such as Paragraph 234(1)(2)(b) of
the Allgemeines Sozialversicherungsgesetz, read in conjunction
with Paragraph 236(3) of that law, which takes into account,
for the purposes of prolongation of the reference period during
which the qualifying period for the acquisition of the right to a
pension must have been completed, only those periods during