CELEX: C2002/144/09
Language: en
Date: 2002-06-15 00:00:00
Title: 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)

C 144/6               EN                     Official Journal of the European Communities                                           15.6.2002
                JUDGMENT OF THE COURT                                         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
                         23 April 2002                                        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
in Case C-143/00 (Reference for a preliminary ruling from                     markets between Member States.
the High Court of Justice): Boehringer Ingelheim KG,
Boehringer Ingelheim Pharma KG v Swingward Ltd, and                     2.    Replacement packaging of pharmaceutical products is objectively
between Boehringer Ingelheim KG, Boehringer Ingelheim                         necessary within the meaning of the Court’s case-law if, without
Pharma KG and Dowelhurst Ltd, and between Glaxo                               such repackaging, effective access to the market concerned, or to
Group Ltd and Swingward Ltd, and between Boehringer                           a substantial part of that market, must be considered to be
Ingelheim KG, Boehringer Ingelheim Pharma KG and                              hindered as the result of strong resistance from a significant
Dowelhurst Ltd, and between Glaxo Group Ltd, The                              proportion of consumers to relabelled pharmaceutical products.
Wellcome Foundation Ltd and Dowelhurst Ltd, and
between SmithKline Beecham plc, Beecham Group plc,                      3.    A parallel importer must, in any event, in order to be entitled
SmithKline & French Laboratories Ltd and Dowelhurst                           to repackage trade-marked pharmaceutical products, fulfil the
 Ltd and between Eli Lilly and Co. and Dowelhurst Ltd (1)                     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
(Trade marks — Directive 89/104/EEC — Article 7(2) —                          incumbent on the parallel importer himself to give notice to the
Exhaustion of the rights conferred by the trade mark                          trade mark proprietor of the intended repackaging. In the event
— Pharmaceutical products — Parallel importation —                            of dispute, it is for the national court to assess, in the light of
          Repackaging of the trade-marked product)                            all the relevant circumstances, whether the proprietor had a
                                                                              reasonable time to react to the intended repackaging.
                        (2002/C 144/08)
                                                                        (1) OJ C 233 of 12.8.2000.
                  (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,                                     JUDGMENT OF THE COURT
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                                            (Fifth Chamber)
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                                            25 April 2002
Ingelheim KG, Boehringer Ingelheim Pharma KG and Dowel-
hurst Ltd, and between Glaxo Group Ltd, The Wellcome                    in Case C-154/00: Commission of the European Communi-
Foundation Ltd and Dowelhurst Ltd, and between SmithKline                                   ties v Hellenic Republic (1)
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)           (Failure by a Member State to fulfil its obligations —
of First Council Directive 89/104/EEC of 21 December 1988               Directive 85/374/EEC — Product liability — Incorrect
to approximate the laws of the Member States relating to trade                                       transposition)
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,
                                                                                                   (2002/C 144/09)
p. 3), and of Articles 28 EC and 30 EC, the Court, composed
of: G. C. Rodrı́guez Iglesias, President, P. Jann (President
of Chamber), C. Gulmann (Rapporteur), D. A. O. Edward,                                       (Language of the case: Greek)
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                 (Provisional translation; the definitive translation will be published
Registrar,has given a judgment on 23 April 2002, in which it                                in the European Court Reports)
has ruled:
1.    Article 7(2) of First Council Directive 89/104/EEC of             In Case C-154/00, Commission of the European Communities
      21 December 1988 to approximate the laws of the Member            (Agent: M. Patakia) v Hellenic Republic (Agents: A. Samoni-
 ---pagebreak--- 15.6.2002                 EN                      Official Journal of the European Communities                                            C 144/7
Rantou, G. Alexaki and S. Vodina): Application for a declar-                 ruling in the proceedings pending before that court between
ation that, by not providing in the national legislation transpos-           Johann Franz Duchon and Pensionsversicherungsanstalt der
ing Council Directive 85/374/EEC of 25 July 1985 on the                      Angestellten, on the interpretation of Article 48 and Article 51
approximation of the laws, regulations and administrative                    EC Treaty (now, after amendment, Article 39 and Article 42
provisions of the Member States concerning liability for                     EC), and on the interpretation and validity of Article 9a and
defective products (OJ 1985 L 210, p. 29) for the threshold of               Article 94 of Council Regulation (EEC) No 1408/71 of
EUR 500 laid down in Article 9(b) of that directive, the                     14 June 1971 on the application of social security schemes to
Hellenic Republic has transposed that provision only partially,              employed workers, to self-employed workers and to members
the Court (Fifth Chamber), composed of: P. Jann (Rapporteur),                of their families moving within the Community, as amended
President of the Chamber, S. von Bahr, D. A. O. Edward, A. La                and updated by Regulation (EC) No 118/97 of the Council of
Pergola and C. W. A. Timmermans, Judges; L. A. Geelhoed,                     2 December 1996 (OJ 1997 L 28, p. 1), the Court (Fifth
Advocate General; Lynn Hewlett, Principal Administrator, for                 Chamber), composed of: P. Jann, President of the Chamber,
the Registrar, has given a judgment on 25 April 2002, in                     S. von Bahr, and M. Wathelet (Rapporteur), Judges; F. G. Jacobs,
which it:                                                                    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
                                                                             1.   The situation of a person who is a national of a Member State,
      has failed to fulfil its obligations under that provision;
                                                                                  who, before the accession of that State to the European Union,
                                                                                  was employed in another Member State where he was the victim
2.    Orders the Hellenic Republic to pay the costs.
                                                                                  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
(1) OJ C 176 of 24.6.2000.                                                        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)
                                                                             2.   Article 94(3) of Regulation No 1408/71, as amended and
                              18 April 2002                                       updated by Regulation No 118/97, read in conjunction with
                                                                                  Article 48(2) of the EC Treaty (now, after amendment,
in Case C-290/00 (Reference for a preliminary ruling                              Article 39(2) EC), must be interpreted as precluding a national
from the Oberster Gerichtshof): Johann Franz Duchon v                             provision such as Paragraph 235(3)(a) of the Allgemeines
     Pensionsversicherungsanstalt der Angestellten (1)                            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
(Social security for migrant workers — Article 48 and                             where that disability is the result of an accident at work —
Article 51 of the EC Treaty (now, after amendment,                                which occurred, in the case in point, before the date of entry
Article 39 and Article 42 EC) — Article 9a and 94 of                              into force of that regulation in the Member State concerned —
Regulation (EEC) No 1408/71 — Accident at work occurring                          only in the event that the victim had been insured compulsorily
in another Member State before the entry into force of the                        or privately at the time of the accident under the legislation of
regulation in the worker’s home State — Incapacity for                            that State, to the exclusion of the legislation of all other
                                   work)                                          Member States.
                            (2002/C 144/10)
                    (Language of the case: German)
                                                                             3.   Articles 48(2) and 51 of the EC Treaty (now, after amendment,
(Provisional translation; the definitive translation will be published            Articles 39(2) and 42 EC) must be interpreted as meaning that
                     in the European Court Reports)                               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
In Case C-290/00: Reference to the Court under Article 234                        which the qualifying period for the acquisition of the right to a
EC by the Oberster Gerichtshof (Austria) for a preliminary                        pension must have been completed, only those periods during