CELEX: C1998/378/23
Language: en
Date: 1998-12-05 00:00:00
Title: Action brought on 19 October 1998 by Kingdom of the Netherlands against European Parliament and Council of the European Union (Case C-377/98)

5.12.98               EN                Official Journal of the European Communities                                  C 378/13
    and services in respect of products which at present do        Ð Breach of Article 190 of the EC Treaty: The preamble
    not yet even cross frontiers to an appreciable extent is           to the contested directive contains no statement, or no
    manifestly not necessary for purposes of the internal              adequate statement, of reasons for essential normative
    market.                                                            provisions. It obscures the real main purpose of the
                                                                       directive (protection of health) and does not express
                                                                       the true considerations and motives of the Community
Ð (In the alternative) Breach of the principle of                      institutions which adopted it. It contains no
    subsidiarity: Most tobacco advertising products                    indications whatever as to the observance of
    (posters etc.) are only used nationally and perceived              proportionality and subsidiarity.
    locally, and the few tobacco advertising products
    which are also exported (print media) are not subject
    to any appreciable hindrances in the Member States             (1) OJ L 213, 30.7.1998, p. 9.
    which have prohibitions of tobacco advertising. With
    regard to the internal market there is therefore no
    need for intervention by the Community legislature.
    Since after the directive has been transposed the
    internal market for tobacco advertising products and
    tobacco advertising services' which currently exists at
                                                                   Action brought on 19 October 1998 by Kingdom of the
    least embryonically will be deprived of its legal
                                                                   Netherlands against European Parliament and Council of
    foundation and thereby abolished completely,
                                                                                        the European Union
    regulation by the Member States is also better' with
    regard to the Treaty objective of the internal market.                                (Case C-377/98)
                                                                                           (98/C 378/23)
Ð Infringement of fundamental rights:
                                                                   An action against the European Parliament and the
    Ð Commercial advertising (Article 10 of the
                                                                   Council of the European Union was brought before the
        European Convention on Human Rights): If Ð as
                                                                   Court of Justice of the European Communities on
        in the present case Ð the freedom of tobacco
                                                                   19 October 1998 by the Kingdom of the Netherlands,
        manufacturers and the tobacco advertising
                                                                   represented by Marc Fierstra and Ivo van der Steen,
        industry to express their opinion on tobacco
        consumption is severely restricted by a measure            Assistant Legal Advisers in the Ministry of Foreign
                                                                   Affairs, The Hague, acting as Agents.
        which is neither appropriate nor necessary for
        achieving the legislative aim (improvement of the
        internal market), Article 10 of the Convention is          The applicant claims that the Court should:
        violated. With respect also to the purported
        subsidiary aim of the directive, namely the
        protection of health, a total prohibition of tobacco       1. declare Directive 98/44/EC of the               European
        advertising cannot be justified in view of freedom             Parliament and of the Council (1) void; and
        of expression.
                                                                   2. order the defendant to pay the costs.
    Ð Right to property and freedom to carry on an
        occupation: The prohibition of tobacco advertising
        is a serious interference with the right to property       Pleas in law and main arguments adduced in support:
        and freedom to carry on an occupation of
        producers of tobacco advertising products and
        providers of tobacco advertising services, going as        Ð Incorrect legal basis: Directive 98/44/EC is not
        far as forced abandonment of the entire business in            primarily directed towards the harmonisation of
        the case of specialist undertakings. Also affected,            national patent law principles and moreover goes
        however, is the right to property and freedom to               further than such harmonisation by creating new
        carry on an occupation of tobacco manufacturers,               patent rights of Community origin. Specifically, a
        whose      essential   instrument    of    aggressive          patent is created over living products of
        competition is taken away from them by the                     biotechnological processes and the Directive also
        prohibition of advertising.                                    regulates the scope of that patent protection in a
                                                                       manner which differs from current patent law.
                                                                       Recital 15 in the preamble to the Directive is wrong in
Ð Breach of Articles 30 and 36 of the EC Treaty: A                     stating that no prohibition exists in national patent
    restriction of the free movement of goods with the                 law or the European Patent Convention which
    political aim of protection of health can be justified             precludes a priori the patentability of biological
    only if the need for that restriction has been                     matter; in any event, that statement is not valid for the
    scientifically proved. There is no such proof in the               Netherlands.
    present case, nor is it even attempted in the grounds of
    the contested directive. Nor has the Community
    legislature demonstrated that less drastic measures                Article 100a of the EC Treaty should therefore not
    would not be equally suitable for achieving the health             have been chosen as the legal basis but rather Ð if
    policy objective.                                                  it were really thought necessary to regulate
 ---pagebreak--- C 378/14            EN                  Official Journal of the European Communities                                         5.12.98
   biotechnological inventions in order to achieve, in the                   the human body patentable. Such treatment of
   framework of the common market, one of the                                living human material as an object is unacceptable
   objectives of the Community Ð Article 235. A                              in the context of human dignity.
   procedure in which a qualified majority is sufficient
   was thus wrongly chosen for the adoption of Directive                Ð Violation of patients' right to self-determination:
   98/44/EC, when a procedure for which a unanimous                          Not the slightest provision is made as regards
   vote is prescribed was appropriate.                                       possible recipients of biotechnologically treated
                                                                             material, or at least material which has been
                                                                             obtained through the application of biotechnology.
Ð Infringement of the second paragraph of Article 3(b)                       This means that a patient may be treated with
   of the EC Treaty (the principle of subsidiarity) or,                      such material without his knowledge Ð and thus
   in the alternative, of the combined provisions of                         without his consent Ð even where, had he been
   Articles 3(b) and 190 of the EC Treaty: The patent                        made aware of it, he would have refused such
   laws of the Member States are almost completely                           treatment.
   harmonised following alignment with the European
   Patent Convention. The clarification of the protection
   of biotechnological inventions which is, according to           Ð Infringement of Article 100(a) taken together with
                                                                        Article 189b(2), of the EC Treaty: The activities of
   recital 4 in its preamble, the aim of Directive 98/44/
   EC should therefore ensue from the implementation of                 the Commission are governed by the principle of
   the European Patent Convention. It is thus an aim                    collegiality. The Commission's proposal, which was an
   eminently suitable for being achieved by the Member                  indispensable prerequisite for the contested Directive,
   States. Indeed, such an approach is preferable in view               should have been drawn up by the college of
                                                                        commissioners in the definitive text in which it was
   of the fact that the European Patent Convention
   applies also in States other than the Member States of               submitted to the European Parliament and the
   the European Union. Nor, thus, is it established that                Council, because it is an essential part of the
                                                                        Community legislative process. In view of the general
   this matter concerns a Community objective which, by
   reason of the scale or effects of the abovementioned                 scope of the measure adopted by the European
   action, can be better achieved by the Community, or                  Parliament and the Council on the basis of that
   in any event it is not clear from the statement of                   proposal, the text should also have been available for
   reasons for the contested measure that this is so.                   consideration by all the members of the college in all
                                                                        the official languages at the time when the
                                                                        Commission took its decision.
Ð Breach of the principle of legal certainty: The
   Netherlands Government takes the view that it is                (1) Directive 98/44/EC of the European Parliament and of the
   only to a limited extent that Directive 98/44/EC                    Council of 6 July 1998 on the legal protection of
   removes any uncertainty regarding the patenting of                  biotechnological inventions (OJ L 213, 30.7.1998, p. 13).
   biotechnological inventions, whereas it gives rise at the
   same time to new uncertainties.
Ð Breach of obligations under international law:
                                                                     Action brought on 21 October 1998 by the Commission
   Ð Notwithstanding Article 1(2) of Directive 98/44/                    of the European Communities against Kingdom of
       EC, Member States are denied the opportunity of                                          Belgium
       choosing whether or not to make use of the                                          (Case C-378/98)
       possibility of an exclusion under Article 27(3)(b)
       fo the TRIPS Agreement.                                                               (98/C 378/24)
   Ð Directive 98/44/EC was not drawn up in                        An action against the Kingdom of Belgium was brought
       accordance with the provisions of Article 2 of the          before the Court of Justice of the European Communities
       Agreement on Technical Barriers to Trade, or in             on 21 October 1998 by the Commission of the European
       any event it is not apparent from the statement of          Communities, represented by GeÂrard Rozet, Legal Adviser,
       reasons for the Directive that this was so.                 acting as Agent, with an address for service in
                                                                   Luxembourg at the office of Carlos Gómez de la Cruz,
   Ð Infringement of the European Patent Convention.               Wagner Centre, Kirchberg.
   Ð Infringement of the Convention on Biological                  The Commission of the European Communities claims
       Diversity.                                                  that the Court should:
                                                                   Ð declare that, by failing to adopt within the period
Ð Breach of fundamental rights:                                         prescribed the measures necessary to recover from the
                                                                        beneficiary undertakings the aid provided for under
   Ð Violation of human dignity: The human body is                      Maribel II/III scheme which was declared unlawful
       the bearer of human dignity. Under Directive 98/                 and incompatible with the common market by the
       44/EC, it will be possible to make isolated parts of             Commission's Decision of 4 December 1996, notified