CELEX: C1995/159/33
Language: en
Date: 1995-06-24 00:00:00
Title: Reference for a preliminary ruling by the High Court of Justice, Queen's Bench Division, by order of that court of 3 February 1995, in the case of The Queen against the Secretary of State for the Home Department, ex parte: Abbas Radiom (Case C-111/95)

24 . 6 . 95             I EN I                Official Journal of the European Communities                                  No C 159/17
Reference for a preliminary ruling by the High Court of                  Reference for a preliminary ruling by the High Court of
Justice, Chancery Division, Patents Court, by order of that              Justice, Queen's Bench Division, by order of that court of
court of 31 October 1994, in the case of Yamanouchi                      3 February 1995 , in the case of The Queen against the
Pharmaceutical Co . Ltd against the Comptroller-General of               Secretary of State for the Home Department, ex parte:
                Patents, Designs and Trade Marks                                                  Abbas Radiom
                           ( Case C-1 10/95 )                                                   ( Case C-1 1 1 /95 )
                             ( 95/C 159/32 )                                                      ( 95 /C 159/33
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of                    Reference has been made to the Court of Justice of the
Justice , Chancery Division , Patents Court, of 31 October               European Communities by an order of the High Court of
1994 , which was received at the Court Registry on 3 April               Justice, Queen's Bench Division, of 3 February 1995 , which
1995 , for a preliminary ruling in the case of Yamanouchi                was received at the Court Registry on 3 April 1994 , for a
Pharmaceutical Co . Ltd against the Comptroller-General of               preliminary ruling in the case of The Queen against the
Patents, Designs and Trade Marks, on the following                       Secretary of State for the Home Department, ex parte:
question:                                                                Abbas Radiom, on the following questions :
In the case of an application for a certificate under Council            1. (1)     In Article 8 of Council Directive 64/22 1 /EEC of
Regulation ( EEC ) No 1768/92 of 18 June 1992 concerning                     25 February 1964 on the coordination of special
the creation of a supplementary protection certificate for                   measures concerning the movement and residence of
medicinal products ( 1 ) in a particular Member State ( in casu,             foreign nationals which are justified on grounds of
the United Kingdom ) in circumstances where:                                 public policy, public security or public health do the
                                                                             words 'the same legal remedies . . . as are available to
— a medicinal product was ( on 2 January 1993 ) the subject                  nationals of the State concerned in respect of acts of the
      of a first marketing authorization in the Community ( in               administration' refer ( a ) to specific remedies available in
      casu, in France ) which was obtained pursuant to Council               respect of decisions concerning entry by nationals of the
      Directive 65/65/EEC of 26 January 1965 on the                          State concerned ( in casu, an appeal to an immigration
      approximation of provisions laid down by law,                          adjudicator) or „( b ) do they refer only to remedies
      regulation or administrative action relating to                        available in respect of acts of the administration
      proprietary medicinal products ( 2 ) ( as amended ) after              generally ( in casu, an application for judicial review)?
      1 January 1985 ,
                                                                             (2)    If the answer to ( 1 ) is (a ), do the words quoted
— the medicinal product was ( on 2 January 1993 )                            from Article 8 of Directive 64/22 1/EEC refer only to the
      protected by a valid basic patent in the Member                        legal remedies available to nationals of the State
      State,                                                                 concerned in the same circumstances ( in casu, refusal of
                                                                             entry on grounds of national security), or do they also
— at the date of submission of such application, marketing                   refer to the specific remedies available in analogous or
      authorization in the Member State had yet to be                        similar   circumstances      to   nationals   of  the   State
      obtained,                                                              concerned ; and, if so, how similar or analogous must the
                                                                             circumstances be ?
— application for a certificate as referred to in paragraph 1
      of Article 19 was submitted to the relevant national
      authority (namely the UK Patent Office ) within six                2 . In the light of the answer to question 1 , where a
      months of 2 January 1993 , as laid down in paragraph 2                 Community national is refused entry into the United
      of Article 19 ,                                                        Kingdom on grounds of national security does Article 8
                                                                             of Directive 64/22 1 /EEC require that national to have a
                                                                             right of appeal to an immigration adjudicator if, on the
is Council Regulation ( EEC ) No 1768/92, and in particular
                                                                             correct construction of the relevant provisions of
Article 19 thereof, to be interpreted so as to allow the grant
                                                                             national law, a British national refused entry to the
of an SPC to the patentee in that Member State or must the
                                                                             United Kingdom on grounds of national security has a
provisions of Articles 3 ( b ), 8 and 9 concerning a valid
                                                                             right of appeal for the purpose of establishing that he is a
marketing authorization in the Member State also be                          British national and is therefore entitled to enter the
complied with ?
                                                                             United Kingdom irrespective of whether his presence in
                                                                             the United Kingdom is undesirable for reasons of
(M OJ No L 182 , 2 . 7 . 1992 , p . 1 .                                      national security ?
( 2 ) OJ No 22 , 9 . 2 . 1965 , p . 369 .
                                                                         3.  Do the opening words of Article 9 ( 1 ) of Directive
                                                                             64/22 1/EEC ('where there is no right of appeal to a court
 ---pagebreak--- No C 159/ 18            EN                 Official Journal of the European Communities                                     24 . 6 . 95
     of law, or where such appeal may be only in respect of               module' for the assembly of a data-processing machine,
     the legal validity of the decision, or where the appeal              consisting of a housing with inter alia two disk-drives, as
     cannot have suspensory effect') apply equally to                     described in more detail in the grounds of the reference,
     Article 9 ( 2 )?                                                     is to be classified in subheading No 8471 93 59 either
                                                                          directly or pursuant to General Rule 3b as a ' storage
4 . Where a decision has been taken to exclude a                          unit', on the basis of the drives it contains ?
     Community national from the territory of a Member
     State other than his own on public policy or public              2.  If not :
     security grounds and the Community national has left
     that territory without there having been an appeal or                Is it correct to classify a product such as that described
     reference for an advisory opinion to an independent                  above as a 'part' ( of a data-processing machine ) under
     competent authority pursuant to Articles 8 or 9 of                   subheading No 8473 30 90 of the customs tariff
     Directive 64/22 1 /EEC, does that Community national                 provisions ?
     have a right of reference to an independent competent
     authority under Article 9 ( 2 ) if that national
     subsequently returns or seeks to return to the territory of
     the Member State CQncerned, in respect of:
                                                                      Reference for a preliminary ruling from the Centrale Raad
     ( a ) the refusal of an application for a residence permit;      van Beroep by order of that court of 9 December 1994 in the
           or                                                         case of A. Hallouzi-Choho v. Bestuur van de Sociale
                                                                                              Verzekeringsbank
     ( b ) the refusal of an application for entry; or
                                                                                               ( Case C-126/95 )
     ( c ) a decision ordering expulsion ?                                                       ( 95/C 159/35 )
5 . Do the answers to question 4 vary according to                    Reference has been made to the Court of Justice of the
     whether :                                                        European Communities by an order of the Centrale Raad
                                                                      van Beroep ( Court of last instance in social security matters )
     ( a ) the applicant has entered the territory of the             of 9 December 1994, which was received at the Court
           Member State before asking for a residence                 Registry on 13 April 1995 , for a preliminary ruling in the
           permit;                                                    case of A. Hallouzi-Choho v . Bestuur van de Sociale
                                                                      Verzekeringsbank ( Board of the Social Insurance Bank ) on
     ( b ) the applicant has been expelled from the Member            the following question:
           State before he has asked for a residence permit, or
           has never asked for a residence permit;                    Should Article 41 ( 1 ) of the Cooperation Agreement
                                                                      between the EC and Morocco be interpreted as precluding
     ( c ) the earlier departure was as a result of a decision
           ordering expulsion, or of a threat of detention and
                                                                      imposing the requirement of Netherlands nationality on the
           expulsion and was followed by a decision to
                                                                      spouse — a member of the family within the meaning of
           exclude ?                                                  Article 41 ( 1 ) of the Agreement — of a Moroccan worker in
                                                                      order to obtain entitlement to transitional benefits within
                                                                      the meaning of the Netherlands Algemene Ouderdomswet
(M OJ No L 56 , 4 . 4 . 1964 , p. 850 .
                                                                      ( Law on Old Age )?
Reference for a preliminary ruling from the                           Reference for a preliminary ruling from the Tribunal de
Bundesfinanzhof by order of that court of 16 March                    Commerce, Lyon, by judgment of that court of 2 January
1995 in the case of Vobis Microcomputer AG v.                         1995 , rectified by judgment of 7 February 1995 , in the case
                 Oberfinanzdirektion Miinchen                         of Fontaine SA and Others v. Aqueducs Automobiles
                         ( Case C-121/95 )                                                             Sari
                           ( 95/C 159/34 )                                                     ( Case C-128/95 )
                                                                                                 ( 95/C 159/36 )
Reference has been made to the Court of Justice of the
European Communities by order of the Seventh Senate of                Reference has been made to the Court of Justice of the
the Bundesfinanzhof ( Federal Finance Court ) of 16 March             European Communities by a judgment of the Tribunal de
1995 , which was received at the Court Registry on 10 April           Commerce ( Commercial Court), Lyon, of 2 January 1995 ,
1995 , for a preliminary ruling in the case of Vobis                  rectified by judgment of 7 February 1995 , which was
Microcomputer AG v . Oberfinanzdirektion Miinchen                     received at the Court Registry on 18 April 1995 , for a
( Principal Revenue Office, Munich ) on the following                 preliminary ruling in the case of 1 . Fontaine SA, 2 . Garage
questions :                                                           Laval SA, 3 . Fahy SA, 4 . Renault Lyon Ouest FLB
                                                                      Automobiles SA, 5 . Société de Diffusion Vallis Auto SA —
1 . Is the Common Customs Tariff (combined                            SDV, 6 . Horizon Sud SA v. Aqueducs Automobiles Sari on
     nomenclature ) to be interpreted as meaning that a 'basic        the following questions: