Case C-431/04: Judgment of the Court (Second Chamber) of  4 May 2006  (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — Massachusetts Institute of Technology (Patent law — Medicinal products — Regulation (EEC) No 1768/92 — Supplementary protection certificate for medicinal products — Concept of  combination of active ingredients )
Date: 2006-07-15
Institutions: Court of Justice
Subjects: free movement of goods, interpretation of the law, marketing standard, medicinal product, pharmaceutical legislation, public health

C 165/8

EN

Official Journal of the European Union

15.7.2006

or services has been made and who knew, or had reasonable
grounds to suspect,
the value added tax
that some or all of
payable in respect of that supply, or of any previous or subsequent
supply, would go unpaid, may be made jointly and severally liable,
with the person who is liable, for payment of that tax. Such legis-
lation must, however, comply with the general principles of law
which form part of the Community legal order and which include,
in particular, the principles of legal certainty and proportionality.

is

2. Article 22(8) of Sixth Directive 77/388, as amended by Direc-
tives 2000/65 and 2001/115,
to be interpreted as not
allowing a Member State to enact either legislation, such as that
in issue in the main proceedings, which provides that a taxable
person, to whom a supply of goods or services has been made and
who knew, or had reasonable grounds to suspect, that some or all
of the value added tax payable in respect of that supply, or of any
previous or subsequent supply, would go unpaid, may be made
for
jointly and severally liable, with the person who is liable,
payment of that tax, or legislation which provides that a taxable
person may be required to provide security for the payment of that
tax which is or could become payable by the taxable person to
whom he supplies those goods or services or by whom they are
supplied to him.

Other party to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs) (represented by: S.
Laitinen and A. Folliard-Monguiral, Agents,)

Re:

Appeal against the judgment of the Court of First Instance
(Second Chamber) of 8 July 2004 in Case T-203/02 Sunrider v
OHIM dismissing an action for annulment brought by the
applicant for registration of the word mark ‘VITAFRUIT’ for
products in classes 5, 29 and 32 against the decision of the
First Board of Appeal of The Office for Harmonisation in the
Internal Market (OHIM) of 8 April 2002 in Case R 1046/2000-
1 dismissing the appeal against the decision of the Opposition
Division refusing in part to register that mark in the opposition
proceedings brought by the proprietor of the national word
mark ‘VITAFRUT’ for certain products in classes 30 and 32

Operative part of the judgment

By contrast, that provision does not preclude a national measure
which imposes on any person who is, pursuant to a national
measure adopted on the basis of Article 21(3) of Sixth Directive
77/388, jointly and severally liable for payment of value added
tax, a requirement to provide security for the payment of that tax
which is due.

The Court:

1. Dismisses the appeal;

(1) OJ C 273, 16.11.2004.

2. Orders The Sunrider Corp. to pay the costs.

(1) OJ C 300, 04.12.2004.

Judgment of the Court (First Chamber) of 11 May 2006 —
The Sunrider Corp. v Office for Harmonisation in the
Internal Market (Trade Marks and Designs)

(Case C-416/04 P) (1)

(Appeal — Community trade mark — Articles 8(1)(b), 15(3)
and 43(2) and (3) of Regulation (EC) No 40/94 — Likelihood
of confusion — Application for Community word mark
VITAFRUIT — Opposition by the proprietor of the national
word mark VITAFRUT — Genuine use of the earlier trade
mark — Proof of consent of the proprietor for the use of the
earlier trade mark — Similarity of goods)

Judgment of the Court (Second Chamber) of 4 May 2006
(reference for a preliminary ruling from the Bundesger-
ichtshof (Germany)) — Massachusetts Institute of Tech-
nology

(Case C-431/04) (1)

(Patent law — Medicinal products — Regulation (EEC) No
1768/92 — Supplementary protection certificate for medic-
inal products — Concept of ‘combination of active ingredi-
ents’)

(2006/C 165/13)

Language of the case: English

(2006/C 165/14)

Language of the case: German

Parties

Referring court

Appellant: The Sunrider Corp. (represented by: A. Kockläuner,
Rechtsanwalt)

Bundesgerichtshof (Germany)

15.7.2006

EN

Official Journal of the European Union

C 165/9

Parties to the main proceedings

Parties to the main proceedings

Applicant: Massachusetts Institute of Technology

Re:

Reference for a preliminary ruling — Bundesgerichtshof —
Interpretation of Article 1(b) of Council Regulation (EEC) No
1768/92 of 18 June 1992 concerning the creation of a supple-
mentary protection certificate for medicinal products (OJ 1992
L 182, p. 1) — Concept of ‘combination of active ingredients
of a medicinal product’ — Medicinal product composed of an
active ingredient and an excipient, which constitutes a neces-
sary form of administration of the active ingredient in order to
avoid toxic effect

Operative part of the judgment

Article 1(b) of Council Regulation No 1768/92 of 18 June 1992
concerning the creation of a supplementary protection certificate for
medicinal products, in the version resulting from the Act concerning
the conditions of accession of the Republic of Austria, the Republic of
Finland and the Kingdom of Sweden and the adjustments to the Trea-
ties on which the European Union is founded, must be interpreted so
as not to include in the concept of ‘combination of active ingredients
of a medicinal product’ a combination of two substances, only one of
which has therapeutic effects of its own for a specific indication, the
the medicinal
other
product which is necessary for the therapeutic efficacy of the first
substance for that indication.

rendering possible a pharmaceutical

form of

(1) OJ C 300, 4.12.2004.

Judgment of the Court (First Chamber) of 18 May 2006
(reference for a preliminary ruling from the Hoge Raad
der Nederlanden (Netherlands)) — Magpar VI BV v Staats-
secretaris van Financiën

(Case C-509/04) (1)

taxes on the

(Indirect
capital — Directive
69/335/EEC — Article 7(1)(b) and (bb) — Capital duty —
Exemption — Requirements — Retention for a period of five
years of shares acquired)

raising of

(2006/C 165/15)

Language of the case: Dutch

Referring court

Hoge Raad der Nederlanden

Applicant: Magpar VI BV

Defendant: Staatssecretaris van Financiën

Re:

Reference for a preliminary ruling — Hoge Raad der Neder-
landen — Interpretation of Article 7(1)(bb) of Council Directive
69/335/EEC of 17 July 1969 concerning indirect taxes on the
raising of capital (OJ English Special Edition 1969 (II), p.412),
inserted by Council Directive 73/79/EEC of 9 April 1973
varying the field of application of the reduced rate of capital
duty provided for in respect of certain company reconstruction
operations by Article 7(1)(b) of
the Directive concerning
indirect taxes on the raising of capital — Shares in a company
which are no longer retained by another company following a
merger — Five-year period — Disposal of shares

Operative part of the judgment

The Court:

1. Article 7(1)(b) and (bb) of Council Directive 69/335/EEC of 17
July 1969 concerning indirect taxes on the raising of capital, as
amended by Council Directive 73/79/EEC of 9 April 1973 and
by Council Directive 85/303/EEC of 10 June 1985, must be
interpreted as meaning that, where a first capital company, within
five years after the acquisition of shares in a second capital
company in the course of a share merger that is exempt from
capital duty, ceases to hold those shares because the second
company has itself merged with a third capital company and has,
as a result, ceased to exist, the first company having acquired
shares in the third company by way of consideration, the require-
ment
five years the shares initially
acquired, laid down by subparagraph (bb) of the provision in ques-
tion, is not transferred to the shares the first company holds in the
third company.

to retain for a period of

2. The fact that the second sentence of the second sub-subparagraph
of Article 7(1)(bb) of Directive 69/335, as amended by Directives
73/79 and 85/303, refers to a ‘transfer’ of shares held as a result
of a transaction that is exempt from capital duty is not relevant to
the first question.

(1) OJ C 31, 05.02.2005.