CELEX: C1998/166/11
Language: en
Date: 1998-05-30 00:00:00
Title: Reference for a preliminary ruling by the Sø- og Handelsret by order of 18 March 1998 in the case of 3Com Corporation v Bluecom Danmark A/S and KISS Nordic A/S (Case C-80/98)

30.5.98               EN                   Official Journal of the European Communities                                    C 166/7
Ð order such other or further relief as may be lawful or              Action brought on 24 March 1998 by the Commission of
     equitable; and                                                       the European Communities against the Kingdom of
                                                                                                  Belgium
                                                                                             (Case C-79/98)
Ð order the Council to pay the Appellant's costs.
                                                                                              (98/C 166/10)
Pleas in law and main arguments:                                      An action against the Kingdom of Belgium was brought
                                                                      before the Court of Justice of the European Communities
                                                                      on 24 March 1998 by the Commission of the European
The Appellant submits that the judgment of the Court of               Communities, represented by Götz zur Hausen, Legal
First Instance contains fundamental errors of law and                 Adviser, acting as Agent, with an address for service in
must be set aside.                                                    Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                      Wagner Centre, Kirchberg.
First, the Court of First Instance erred in finding that              The applicant claims that the Court should:
patent-protection in the exporter's domestic market alone
is irrelevant to the price comparability requirement
contained in Article 2(3) of Council Regulation (EEC)                 Ð Declare that, by failing to adopt the laws, regulations
No 2423/88 (4), hereinafter the Basic Regulation'. The                   or administrative provisions necessary to comply with
ordinary meaning of the word comparable' within                          Commission Directive 94/69/EC of 19 December 1994
Article 2(3), the overall scheme of the Basic Regulation                  adapting to technical progress for the twenty-first time
and of the process for establishing and comparing normal                  Council Directive 67/548/EEC on the approximation
value and export price, GATT law, U.S. law, and the aims                  of laws, regulations and administrative provisions
and objectives of anti-dumping law and of intellectual                    relating to the classification, packaging and labelling
property law all lead to the conclusion that patent-                      of dangerous substances (1), the Kingdom of Belgium
protection is a matter affecting price comparability within               has failed to fulfil its obligations under that directive;
the meaning of Article 2(3) and that normal value may                     and
not be established on the basis of actual domestic prices
when those prices (but not export prices) are the result of           Ð Order the Kingdom of Belgium to pay the costs.
patent-protected sales.
                                                                      Pleas in law and main arguments:
Second, the Court of First Instance erred in finding that a
failure by the Commission to grant any disclosure of its              The pleas in law and main arguments are analogous with
determinations prior to the imposition of provisional                 those submitted in Case C-66/98 (2); the time-limit
duties is a defect which can be remedied after the                    provided for in the directive expired on 1 September 1996.
imposition of provisional duties and does not, therefore,
affect the validity of the definitive collection of the               (1) OJ L 381 of 31.12.1994, p. 1.
provisional duties. The fundamental principles of                     (2) OJ C 137 of 2.5.1998, p. 12.
Community law Ð in particular the right to be heard Ð
and the practice of the Commission in other cases required
the Commission to disclose essential facts and
considerations to the Appellant prior to the adoption of
the Provisional Duty Regulation. The Commission's
failure to make timely disclosure of such matters to the
                                                                      Reference for a preliminary ruling by the Sù- og Handels-
Appellant amounted to a breach of this fundamental
                                                                      ret by order of 18 March 1998 in the case of 3Com
principle as well as to discrimination. This fundamental
                                                                      Corporation v Bluecom Danmark A/S and KISS Nordic
breach rendered the Provisional Duty Regulation invalid,
                                                                                                    A/S
and this defect in the Provisional Duty could not be and
was not remedied in the Definitive Duty Regulation.                                          (Case C-80/98)
                                                                                              (98/C 166/11)
(1) OJ C 291 of 8.11.1991, p. 8.
(2) OJ C 291 of 8.11.1991, p. 9.
(3) Council Regulation (EEC) No 1391/91 of 27 May 1991                Reference has been made to the Court of Justice of the
    imposing a definitive anti-dumping duty on imports of             European Communities by order of 18 March 1998 from
    aspartame originating in Japan and the United States of           the Sù- og Handelsret (Maritime and Commercial Court),
    America (OJ L 134 of 29.5.1991, p. 1).                            which was received at the Court Registry on 25 March
(4) Council Regulation (EEC) No 2423/88 of 11 July 1988 on            1998, for a preliminary ruling in the case of 3Com
    protection against dumped or subsidized imports from
                                                                      Corporation v Bluecom Danmark A/S and KISS Nordic
    countries not members of the European Economic Community
    (OJ L 209 of 2.8.1988, p. 1).                                     A/S on the following question:
                                                                      Does it follow from Article 7(1) of First Council Directive
                                                                      89/104/EEC of 21 December 1988 to approximate the
 ---pagebreak--- C 166/8               EN                Official Journal of the European Communities                                     30.5.98
laws of the Member States relating to trade marks (1) (the                   continue to manufacture and market product X
Trade Mark Directive') that Member States are precluded                       in Member States other than Member State B?
from introducing or maintaining a legal position whereby
trade mark rights are exhausted where the trade mark is            2. To what extent is it relevant to the answer to
marketed outside the Community under that mark?                         Question 1 that:
(1) OJ L 40 of 11.2.1989, p. 1.                                         (i)    the marketing authorisation for medicinal
                                                                               product X ceased to have effect in Member State
                                                                               B as a result of voluntary surrender on the part
                                                                               of the person to whom it had been granted; and/
                                                                               or
                                                                        (ii)   the formulation of medicinal product Y was
Reference for a preliminary ruling by the Divisional                           developed and introduced in order to provide a
Court, Queen's Bench Division, by order of that court of                       benefit to public health which medicinal product
31 July 1997, in the case of The Queen against The                             X (manufactured according to a different
Licensing Authority Established by the Medicines Act                           formulation) does not provide; and/or
1968 (acting by the Medicines Control Agency), ex parte:
     1) Rhône-Poulenc Rorer Ltd 2) May & Baker Ltd.                     (iii) that benefit to public health would not be
                       (Case C-94/98)                                          achieved if product X and product Y are both on
                                                                               the market in Member State B at the same time;
                        (98/C 166/12)
                                                                               and/or
Reference has been made to the Court of Justice of the                  (iv) the differences between the formulations of
European Communities by an order of the Divisional                             medicinal product X and medicinal product Y
Court, Queen's Bench Division, of 31 July 1997, which                          are such that neither product may lawfully be
was received at the Court Registry on 1 April 1998, for a                      marketed under the marketing authorisation
preliminary ruling in the case of The Queen against The                        applicable to the other; and/or
Licensing Authority Established by the Medicines Act
1968 (acting by the Medicines Control Agency), ex parte:                (v)    the competent authority possesses the relevant
1) Rhône-Poulenc Rorer Ltd 2) May & Baker Ltd, on the                          data required under Directive 65/65/CEE in
following questions:                                                           relation to both product X and product Y; and/or
                                                                        (vi) the competent authority considers that the
1. In a case where medicinal product X is sought to be                         prohibition on imports of product X from
    imported from Member State A into Member State B,                          Member State A would have the effect of
    is it permissible for the person who proposes to place                     partitioning the market; and/or
    the imported product upon the market in Member
    State B to seek and obtain a marketing authorisation                (vii) the competent authority considers that there are
    from the competent authority in Member State B                             no grounds within Article 36 of the EC Treaty
    without complying with the requirements of Council                         which would justify a prohibition on imports
    Directive 65/65/EEC (1) (as amended) if:                                   and sales of product X?
    (i)   medicinal product X is the subject of a marketing        (1) Council Directive 65/65/EEC of 26 January 1965 on the
          authorisation granted in Member State A and was              approximation of provisions laid down by law, regulation or
          the subject of a marketing authorisation which               administrative action relating to proprietary medicinal
          has ceased to have effect in Member State B; and             products (OJ 22 of 9.2.1965, p. 369 (SE SER1 (65Ð66)
                                                                       p. 20)).
    (ii) medicinal product X has the same active
          ingrediens and therapeutic effect as medicinal
          product Y, but is not manufactured according to
          the same formulation as medicinal product Y; and
    (iii) medicinal product Y is the subject of a marketing        Appeal brought on 3 April 1998 by Edouard Dubois et
          authorisation granted in Member State B, but is          Fils SA against the judgment delivered on 29 January
          not the subject of a marketing authorisation             1998 by the Fifth Chamber of the Court of First Instance
          granted in Member State A; and                           of the European Communities in Case T-113/96 between
                                                                   Edouard Dubois et Fils SA, on the one hand, and Council
    (iv) the marketing authorisations referred to in (i) and       of the European Union and Commission of the European
          (iii) above were granted to different members of                            Communities, on the other
          the same group of companies and the                                              (Case C-95/98 P)
          manufacturers of medicinal products X and Y are
                                                                                             (98/C 166/13)
          also members of that group of companies; and
    (v) companies within the same group as the holder of           An appeal against the judgment delivered on 29 January
          the marketing authorisation for product X                1998 by the Fifth Chamber of the Court of First Instance