CELEX: C2004/059/19
Language: en
Date: 2004-03-06 00:00:00
Title: Case C-541/03: Reference for a preliminary ruling by the Oberster Gerichtshof of the Republic of Austria by order of that court of 18 November 2003 in the case of Lambert Roodbeen against the Republic of Austria

6.3.2004              EN                         Official Journal of the European Union                                              C 59/11
Reference for a preliminary ruling by the Hoge Raad der                  Reference for a preliminary ruling by the Oberster
Nederlanden by order of that Court of 19 December 2003                   Gerichtshof of the Republic of Austria by order of that
in the case of 1. ROCHE NEDERLAND B.V., 2. ROCHE                         court of 18 November 2003 in the case of Lambert
DIAGNOSTIC SYSTEMS INC., 3. N.V. ROCHE S.A.,                                       Roodbeen against the Republic of Austria
4. HOFFMANN-LA ROCHE ACTIEN-GESELLSCHAFT,
5. PRODUITS ROCHE S.A., 6. ROCHE PRODUCTS LIM-
ITED, 7. F. HOFFMANN-LA ROCHE A.G., 8. HOFFMANN-                                                   (Case C-541/03)
LA ROCHE WIEN GMBH, and 9. ROCHE AB against
Dr. Frederick James PRIMUS, 2. Dr. Milton David GOLD-
                            ENBERG
                                                                                                    (2004/C 59/19)
                        (Case C-539/03)
                         (2004/C 59/18)                                  Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Oberster Gerichtshof
                                                                         (Supreme Court) of the Republic of Austria of 18 November
                                                                         2003, received at the Court Registry on 23 December 2003,
                                                                         for a preliminary ruling in case of Lambert Roodbeen against
Reference has been made to the Court of Justice of the                   the Republic of Austria on the following question:
European Communities by order of the Hoge Raad der
Nederlanden (Supreme Court of the Netherlands) of 19 Decem-
ber 2003, received at the Court Registry on 22 December
2003, for a preliminary ruling in the case of 1. ROCHE                   Are Articles 8 and 9 of Council Directive 64/221/EEC of
NEDERLAND B.V., 2. ROCHE DIAGNOSTIC SYSTEMS INC.,                        25 February 1964 on the co-ordination of special measures
3. N.V. ROCHE S.A., 4. HOFFMANN-LA ROCHE ACTIEN-                         concerning the movement and residence of foreign nationals
GESELLSCHAFT, 5. PRODUITS ROCHE S.A., 6. ROCHE                           which are justified on grounds of public policy, public security
PRODUCTS LIMITED, 7. F. HOFFMANN-LA ROCHE A.G.,                          or public health (‘the directive’) (1) to be interpreted as meaning
8. HOFFMANN-LA ROCHE WIEN GMBH, and 9. ROCHE AB                          that the administrative authorities — notwithstanding an
against Dr. Frederick James PRIMUS, 2. Dr. Milton David                  internal appeal facility — may not, save in cases of urgency,
GOLDENBERG on the following questions:                                   take a decision ordering expulsion from the territory without
                                                                         obtaining an opinion from a competent authority within the
                                                                         meaning of Article 9(1) of the directive (for which no provision
A.   Is there a connection, as required for the application of           is made in the Austrian legal system), where appeals against
     point 1 of Article 6 of the Brussels Convention, between            their decisions may be lodged with the courts of public law
     a patent infringement action brought by a holder of a               only subject to the limitations that:
     European patent against a defendant having its registered
     office in the State of the court in which the proceedings
     are brought, on the one hand, and against various                   (a)   such appeals have no suspensory effect from the outset;
     defendants having their registered offices in Contracting
     States other than that of the State of the court in which
     the proceedings are brought, on the other hand, who,                (b) those courts are barred from taking decisions on appro-
     according to the patent holder, are infringing that patent                priateness and are able merely to annul (quash) contested
     in one or more other Contracting States?                                  decisions;
B.   If the answer to Question A is not or not unreservedly in           (c)   one of those courts (the Verwaltungsgerichtshof —
     the affirmative, in what circumstances is such a connec-                  the Higher Administrative Court) is limited, as regards
     tion deemed to exist, and is it relevant in this context                  findings of fact, to an examination of whether the
     whether, for example,                                                     conclusions based on the facts are warranted; and
     —     the defendants form part of one and the same group            (d) the other of those courts (the Verfassungsgerichtshof —
           of companies?                                                       the Constitutional Court), in addition to being limited, as
                                                                               regards the facts, to an examination of whether the
                                                                               conclusions based on the facts are warranted, is limited
     —     the defendants are acting together on the basis of a
                                                                               to an examination of the infringement of rights guaran-
           common policy, and if so is the place from which
                                                                               teed by the constitution?
           that policy originates relevant?
     —     the alleged infringing acts of the various defendants
           are the same or virtually the same?                           (1) OJ, English Special Edition 1963-1964, p. 117.