Case C-348/04: Judgment of the Court (Second Chamber) of 26 April 2007 (reference for a preliminary ruling from the Court of Appeal — United Kingdom) — Boehringer Ingelheim KG, Boehringer Ingelheim Pharma GmbH & Co. KG v Swingward Ltd, and Boehringer Ingelheim KG, Boehringer Ingelheim Pharma GmbH & Co. KG v Dowelhurst Ltd, and Glaxo Group Ltd v Swingward Ltd, and Glaxo Group Ltd, The Wellcome Foundation Ltd v Dowelhurst Ltd, and SmithKline Beecham plc, Beecham Group plc, SmithKline & French Laboratories Ltd v Dowelhurst Ltd, and Eli Lilly and Co. v Dowelhurst Ltd (Industrial and commercial property — Trade mark rights — Pharmaceutical products — Parallel imports — Repackaging of the product bearing the trade mark)
Date: 2007-04-28
Institutions: Court of Justice
Subjects: import, interpretation of the law, labelling, pharmaceutical product, preparation for market, trade mark, trade-mark law

C 96/4

EN

Official Journal of the European Union

28.4.2007

Defendant: Republic of Finland (represented by: T. Pynnä and
E. Bygglin, Agents)

Interveners in support of
the defendant: Kingdom of Denmark
(represented by: J. Molde, Agent), Federal Republic of Germany
(represented by: A. Tiemann and M. Lumma, Agents), Kingdom
of
(represented by: H. G. Sevenster and
C.M. Wissels and by P. van Ginneken, Agents)

the Netherlands

Re:

Failure of a Member State to fulfil its obligations — Infringe-
ment of Article 28 EC — Purchase by a public undertaking of
institutional kitchen equipment — Obligation of transparency

Operative part of the judgment

The Court:

1. Dismisses the action as inadmissible;

Article 43 EC), Article 58 (now Article 48 EC) and Article 73b
(now Article 56 EC) — National legislation on corporation tax
limiting the set-off by resident parent companies of
losses
resulting from the writing down of holdings in subsidiary
companies resident for tax purposes in other Member States

Operative part of the judgment

In circumstances such as those of the main proceedings, in which a
parent company holds shares in a non-resident subsidiary which give it
a definite influence over the decisions of that foreign subsidiary and
allow it to determine its activities, Article 52 of the EC Treaty (now,
after amendment, Article 43 EC) and Article 58 of the EC Treaty
(now Article 48 EC) preclude legislation of a Member State which
restricts the right of a parent company which is resident in that State
to deduct for tax purposes losses incurred by that company in respect
of write-downs to the book value of its shareholdings in subsidiaries
established in other Member States.

2. Orders the Commission of the European Communities to pay the

(1) OJ C 273, 6.11.2004.

costs.

(1) OJ C 179, 10.7.2004.

Judgment of the Court (Second Chamber) of 29 March
2007 (reference
a preliminary ruling from the
Finanzgericht Köln — Germany) — Rewe Zentralfinanz eG,
ITS Reisen GmbH v
as universal

successor of

legal

for

Finanzamt Köln-Mitte

(Case C-347/04) (1)

(Freedom of establishment — Corporation tax — Immediate
offsetting of losses incurred by parent companies — Losses
stemming from write-downs to the book value of sharehold-
ings in subsidiaries established in other Member States)

(2007/C 96/06)

Language of the case: German

Judgment of the Court (Second Chamber) of 26 April 2007
(reference for a preliminary ruling from the Court of
Appeal — United Kingdom) — Boehringer Ingelheim KG,
Boehringer
Ingelheim Pharma GmbH & Co. KG v
Swingward Ltd, and Boehringer Ingelheim KG, Boehringer
Ingelheim Pharma GmbH & Co. KG v Dowelhurst Ltd, and
Glaxo Group Ltd v Swingward Ltd, and Glaxo Group Ltd,
The Wellcome Foundation Ltd v Dowelhurst Ltd, and
SmithKline Beecham plc, Beecham Group plc, SmithKline
& French Laboratories Ltd v Dowelhurst Ltd, and Eli Lilly
and Co. v Dowelhurst Ltd

(Case C-348/04) (1)

(Industrial and commercial property — Trade mark rights —
Pharmaceutical products — Parallel imports — Repackaging
of the product bearing the trade mark)

(2007/C 96/07)

Language of the case: English

Referring court

Finanzgericht Köln

Parties to the main proceedings

Referring court

Court of Appeal

Applicant: Rewe Zentralfinanz eG, as universal legal successor of
ITS Reisen GmbH

Parties to the main proceedings

Defendant: Finanzamt Köln-Mitte

Re:

Reference for a preliminary ruling — Finanzgericht Köln —
amendment,
52
Interpretation

of Article

(now,

after

Ingelheim KG, Boehringer

Ingelheim
Applicants: Boehringer
Pharma GmbH & Co. KG, Glaxo Group Ltd, The Wellcome
Foundation Ltd, SmithKline Beecham plc, Beecham Group plc,
SmithKline & French Laboratories Ltd, and Eli Lilly and Co.

Defendants: Swingward Ltd and Dowelhurst Ltd

28.4.2007

EN

Official Journal of the European Union

C 96/5

Re:

Reference for a preliminary ruling — Court of Appeal — Free
movement of goods — Use of a trade mark by the parallel
importer of a pharmaceutical product — Change in packaging
— Requirements
laid down
by the Court of Justice in Joined Cases C-427/93, C-429/93 and
C-436/93 Bristol-Myers Squibb v Paranova — Interpretation

for placing on the market

Operative part of the judgment

1. Article 7(2) of

the First Council Directive 89/104/EEC of
21 December 1988 to approximate the laws of the Member States
relating to trade marks, as amended by the Agreement on the Euro-
pean Economic Area of 2 May 1992,
is to be interpreted as
the trade mark owner may legitimately oppose
meaning that
further commercialisation of a pharmaceutical product
imported
from another Member State in its original internal and external
packaging with an additional
label applied by the
importer, unless

external

label to the packaging containing the product — is not limited to
cases where the repackaging is defective, of poor quality, or untidy.

4. The question whether the fact that a parallel importer:

— fails

to affix the trade mark to the new exterior

carton

(‘de-branding’), or

— applies either his own logo or house-style or get-up or a get-up
used for a number of different products (‘co-branding’), or

— positions the additional

label so as wholly or partially to

obscure the proprietor's trade mark, or

— fails to state on the additional

label that the trade mark in

question belongs to the proprietor, or

— prints the name of the parallel importer in capital letters,

is liable to damage the trade mark's reputation is a question of fact
for the national court to decide in the light of the circumstances of
each case.

— it

is established that reliance on trade mark rights by the
proprietor in order to oppose the marketing of the overstickered
product under that trade mark would contribute to the artificial
partitioning of the markets between Member States;

— it is shown that the new label cannot affect the original condi-

tion of the product inside the packaging;

5. In situations such as those in the main proceedings, it is for the
parallel importers to prove the existence of the conditions that

— reliance on trade mark rights by the proprietor in order to
oppose the marketing of repackaged products under that trade
mark would contribute to the artificial partitioning of
the
markets between Member States;

— the packaging clearly states who overstickered the product and

the name of the manufacturer;

— the repackaging cannot affect
product inside the packaging;

the original condition of

the

— the presentation of the overstickered product is not such as to
be liable to damage the reputation of the trade mark and of its
proprietor; thus, the label must not be defective, of poor quality,
or untidy; and

— the importer gives notice to the trade mark proprietor before the
overstickered product is put on sale, and, on demand, supplies
him with a specimen of that product.

for

2. The condition that the repackaging of the pharmaceutical product,
either by reboxing the product and re-applying the trade mark or
by applying a label to the packaging containing the product, be
importing
necessary
Member State, as one of the conditions which, if fulfilled, prevent
the proprietor under Article 7(2) of Directive 89/104, as amended
by the Agreement on the European Economic Area, from opposing
such commercialisation, is directed solely at the fact of repackaging
and not at the manner and style of the repackaging.

commercialisation in the

further

its

3. The condition that the presentation of the pharmaceutical product
must not be such as to be liable to damage the reputation of the
trade mark and of its proprietor — as a necessary condition for
preventing the proprietor, pursuant to Article 7(2) of Directive
89/104, as amended by the Agreement on the European Economic
from legitimately opposing further commercialisation of a
Area,
importer has either
pharmaceutical product where the parallel
reboxed the product and re-applied the trade mark or applied a

— the new packaging clearly states who repackaged the product

and the name of the manufacturer;

— the presentation of the repackaged product is not such as to be
liable to damage the reputation of the trade mark and of its
proprietor; thus, the repackaging must not be defective, of poor
quality, or untidy; and

— the importer must give notice to the trade mark proprietor
before the repackaged product is put on sale and, on demand,
supply him with a specimen of the repackaged product,

and which, if fulfilled, would prevent the proprietor from lawfully
opposing the further commercialisation of a repackaged pharmaceu-
tical product.

it

that

the parallel

is sufficient, however,

As regards the condition that it must be shown that the repacka-
ging cannot affect the original condition of the product inside the
packaging,
importer
furnishes evidence that leads to the reasonable presumption that
that condition has been fulfilled. This applies a fortiori also to the
condition that the presentation of the repackaged product must not
be such as to be liable to damage the reputation of the trade mark
and of
its proprietor. Where the importer furnishes such initial
evidence that the latter condition has been fulfilled, it will then be
for the proprietor of the trade mark, who is best placed to assess
whether the repackaging is liable to damage his reputation and
that of the trade mark, to prove that they have been damaged.

C 96/6

EN

Official Journal of the European Union

28.4.2007

6. Where a parallel

importer has failed to give prior notice to the
trade mark proprietor
concerning a repackaged pharmaceutical
product, he infringes that proprietor's rights on the occasion of any
subsequent importation of that product, so long as he has not
given the proprietor such notice. The sanction for that infringement
must be not only proportionate, but also sufficiently effective and a
sufficient deterrent to ensure that Directive 89/104, as amended by
the Agreement on the European Economic Area, is fully effective. A
national measure under which, in the case of such an infringement,
the trade mark proprietor is entitled to claim financial remedies on
the same basis as if the goods had been spurious, is not in itself
contrary to the principle of proportionality. It is for the national
court, however, to determine the amount of the financial remedies
according to the circumstances of each case, in the light in particu-
lar of the extent of damage to the trade mark proprietor caused by
the parallel
importer's infringement and in accordance with the
principle of proportionality.

— Charge actually falling on the Communities, as lessee, either
because of stipulations in the leases, or because it is simply
passed on in the amount of the rent

Operative part of the judgment

The Court:

1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs;

3. Orders the Council of the European Union to bear its own costs.

(1) OJ C 273, 6.11.2004.

(1) OJ C 300, 4.12.2004.

Judgment of the Court (First Chamber) of 22 March 2007
— Commission of the European Communities v Kingdom
of Belgium

(Case C-437/04) (1)

(Failure of a Member State to fulfil obligations — Protocol on
the Privileges and Immunities of the European Communities
— Buildings leased by the Communities — Region of Brussels
Capital — Tax on owners)

(2007/C 96/08)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: J.-F. Pasquier, Agent)

Defendant: Kingdom of Belgium (represented by: E. Dominkovits,
Agent)

Judgment of the Court (Grand Chamber) of 24 April 2007
— Commission of the European Communities v Kingdom
of the Netherlands

(Case C-523/04) (1)

(Failure by a Member State to fulfil its obligations — Conclu-
sion by a Member State of a bilateral air transport agreement
with the United States of America — Right of establishment
— Secondary law governing the internal market in air trans-
port — External competence of the Community)

(2007/C 96/09)

Language of the case: Dutch

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Huttunen and W. Wils, Agents)

Defendant: Kingdom of
H.G. Sevenster and M. de Grave, Agents)

the Netherlands

(represented by:

Intervener in support of the defendant: French Republic (represented
by: G. de Bergues and A. Hare, Agents)

Intervener in support of the applicant: Council of the European
Union (represented by: G. Maganza and A.-M. Colaert, Agents)

Re:

Re:

Failure of a Member State to fulfil obligations — Infringement
of Article 3 of the Protocol on the privileges and immunities of
the European Communities of 8 April 1965, exempting the
Communities, their assets, revenues and other property from all
direct taxes — National provision imposing a tax on owners of
buildings subject to business occupancy in the Region of Brus-
sels Capital the surface area of which exceeds a certain threshold

Failure of a Member State to fulfil its obligations — Infringe-
ment of Articles 5 and 52 of the EC Treaty (now Articles 10
and 43 EC) — Infringement of Council Regulations (EEC)
Nos 2409/92 of 23 July 1992 on fares and rates for air services
(OJ 1992 L 240, p. 15) and 2299/89 of 24 July 1989 on a
code of conduct for computerised reservation systems (OJ 1989
L 220, p. 1), as amended by Council Regulation (EEC)
No 3089/93 of 29 October 1993 (OJ 1993 L 278, p. 1) —
‘Open sky’ bilateral agreement with the US — Review —
Restrictions on freedom to provide services