CELEX: C1998/041/13
Language: en
Date: 1998-02-07 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 18 December 1997 in Case C-402/96 (reference to the Court by the Oberlandesgericht Frankfurt am Main for a preliminary ruling): concerning the commercial registration of an undertaking in the process of formation, brought by European Information Technology Observatory, Europäische Wirtschaftliche Interessenvereinigung (European Economic Interest Grouping - Business name)

C 41/8                EN                  Official Journal of the European Communities                                        7.2.98
J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón                    Article 5(a) of Council Regulation (EEC) No 2137/85 of
(Rapporteur), Judges; F. G. Jacobs, Advocate-General; H.             25 July 1985 on the European Economic Interest
von Holstein, Deputy Registrar, gave a judgment on                   Grouping (EEIG) is to be interpreted as meaning that the
18 December 1997, the operative part of which is as                  business name of an EEIG must include the words
follows:                                                             European Economic Interest Grouping' or the initials
                                                                     EEIG', whilst the other elements to be included may be
1. A substance is not excluded from the definition of                imposed by the provisions of internal law applicable in the
     waste in Article 1(a) of Council Directive 75/442/EEC           Member State in which the grouping has its official
     of 15 July 1975 on waste, as amended by Council                 address.
     Directive 91/156/EEC of 18 March 1991, merely
     because it directly or indirectly forms an integral part        (1) OJ C 74, 8.3.1997.
     of an industrial production process.
2. The second paragraph of Article 5 and the third
     paragraph of Article 189 of the EEC Treaty, and
     Directive 91/156/EEC, require the Member States to
     which that Directive is addressed to refrain, during the        Reference for a preliminary ruling from the
     period laid down therein for its implementation, from           Bundesgerichtshof by order of that court of 17 June 1997
     adopting measures liable seriously to compromise the                in proceedings brought by Farmitalia Carlo Erba Srl
     result prescribed.                                                                      (Case C-392/97)
(1) OJ C 180, 22.6.1996.                                                                       (98/C 41/14)
                                                                     Reference has been made to the Court of Justice of the
                                                                     European       Communities       by    an    order    of    the
                                                                     Bundesgerichtshof (Federal Court of Justice) of 17 June
                                                                     1997, which was received at the Court Registry on
               JUDGMENT OF THE COURT                                 18 November 1997, for a preliminary ruling in
                        (Fifth Chamber)                              proceedings brought by Farmitalia Carlo Erba Srl on the
                                                                     following questions:
                     of 18 December 1997
in Case C-402/96 (reference to the Court by the                      1. Is it a condition of the application of Article 3(b) of
Oberlandesgericht Frankfurt am Main for a preliminary                     Council Regulation (EEC) No 1768/92 (1) of 18 June
ruling): concerning the commercial registration of an                     1992 concerning the creation of a supplementary
undertaking in the process of formation, brought by                       protection certificate for medicinal products that the
European        Information      Technology       Observatory,            product in respect of which the grant of a protection
    Europäische Wirtschaftliche Interessenvereinigung (1)                 certificate is sought is described as an active
 (European Economic Interest Grouping Ð Business name)                    ingredient' in the medicinal authorization?
                          (98/C 41/13)
                                                                          Are, then, the terms of Article 3(b) not satisfied where
                                                                          only one individual salt of a substance is stated in the
               (Language of the case: German)
                                                                          notice of authorization to be an active ingredient', but
                                                                          the grant of a protection certificate is sought for the
  (Provisional translation; the definitive translation will be            free basis and/or for other salts of the active
          published in the European Court Reports)                        ingredient?
In Case C-402/96: reference to the Court under Article 177           2. If the questions at 1 are answered in the negative:
of the EC Treaty by the Oberlandesgericht Frankfurt am
Main (Germany) for a preliminary ruling in the
                                                                          According to which criteria is it to be determined
proceedings pending before that court, concerning the
                                                                          whether the product is protected by a basic patent
commercial registration of an undertaking in the process
                                                                          within the meaning of Article 3(a), where the grant of
of formation, brought by European Information
                                                                          a protection certificate is sought for the free base of an
Technology Observatory, Europäische Wirtschaftliche
                                                                          active ingredient including any of its salts, but the
Interessenvereinigung Ð on the interpretation of
                                                                          basic patent in its patent claims mentions only the free
Article 5(a) of Council Regulation (EEC) No 2137/85 of
                                                                          base of this substance and, moreover, mentions only a
25 July 1985 on the European Economic Interest
                                                                          single salt of this free base? Is the wording of the
Grouping (EEIG) (OJ L 199, 31.7.1985, p. 1) Ð the
                                                                          claim for the basic patent or the latter's scope of
Court (Fifth Chamber) composed of: C. Gulmann
                                                                          protection the determining criterion?
(Rapporteur), President of the Chamber, M. Wathelet, J. C.
Moitinho de Almeida, D. A. O. Edward and J.-P.
Puissochet, Judges; A. La Pergola, Advocate-General; R.              (1) OJ L 182, 2.7.1992, p. 1.
Grass, Registrar, gave a judgment on 18 December 1997,
the operative part of which is as follows: