CELEX: C1997/387/20
Language: en
Date: 1997-12-20 00:00:00
Title: Reference for a preliminary ruling by the President of the Arrondissementsrechtbank, The Hague, by order of 4 November 1997 in the case of Emesa Sugar (Free Zone) NV and 1. Kingdom of the Netherlands, 2. The Netherlands State, 3. The Netherlands Antilles and 4. Aruba (Case C-380/97)

C 387/ 12                 EN                   Official Journal of the European Communities                                  20 . 12 . 97
Reference for a preliminary ruling by the So- og                          Reference for a preliminary ruling by the President of the
Handelsret by order of that court of 31 October 1997 in                   Arrondissementsrechtbank, The Hague, by order of
         the case of Upjohn SA, Danmark v. Paranova A/S                   4 November 1997 in the case of Emesa Sugar ( Free
                            Case C-3 79/97                                Zone ) NV and 1 . Kingdom of the Netherlands, 2 . The
                                                                          Netherlands State, 3 . The Netherlands Antilles and
                             ( 97/C 387/19 )                                                           4 . Aruba
                                                                                                   Case C-380/97 )
Reference has been made to the Court of Justice of the                                              ( 97/C 387/20 )
European Communities by order of the So- og Handelsret
( Maritime and Commercial Court ) of 31 October 1997,
which was received at the Court Registry on 6 November
1997, for a preliminary ruling in the case of Upjohn SA,                  Reference has been made to the Court of Justice of the
Danmark v. Paranova A/S on the following questions:                       European Communities by interlocutory judgment of the
                                                                          President of the Arrondissementsrechtbank, The Hague, of
                                                                          4 November 1997, received at the Court Registry on
1 . Do Article 7 of Council Directive 89/104/EEC (') of                   6 November 1997, for a preliminary ruling in the case of
        21 December 1988 to approximate the laws of the                   Emesa Sugar ( Free Zone ) NV and 1 . Kingdom of the
        Member States relating to trade marks and/or                      Netherlands, 2 . The Netherlands State , 3 . The
        Articles 30 and 36 of the EC Treaty preclude the                  Netherlands Antilles and 4 . Aruba on the following
        proprietor of a trade mark from relying on its right              questions:
        under    national  trade-mark     law   as  the   basis  for
        opposing a third party's purchasing a pharmaceutical
        product in a Member State, repackaging it in that
        third party's own packaging, to which it affixes trade            1 . Is it compatible with the EC Treaty, in particular
                                                                              Part IV thereof, for provisions such as those referred
        mark X belonging to the trade-mark proprietor, and
                                                                              to in the second paragraph of Article 136 of the
        marketing the product in another Member State, in
        the case where the pharmaceutical product in question
                                                                              Treaty to include quantitative restrictions on imports
                                                                              or measures having equivalent effect ?
        is marketed by the trade-mark proprietor or with its
        consent in the Member State of purchase under trade
        mark Y and an identical pharmaceutical product is
        marketed by the trade-mark proprietor or with its                 2 . Is the answer to that question different
        consent in the abovementioned second Member State
        under trade mark X ?
                                                                              a.   if those restrictions or measures are in the form of
                                                                                   tariff quotas or limitations to the provisions
2 . Does it have any bearing on the reply to Question 1                            relating to origin or a combination of the two; or
        whether the trade-mark proprietor's use of different
        trade marks in the country in which the importer
        purchases the product and in that in which the                        b . if the provisions in question comprise safeguard
        importer sells the product is attributable to subjective                   measures or not ?
        circumstances particular to the trade-mark proprietor ?
        If the answer is yes, is the importer required to adduce
        evidence that the use of different trade marks is or was
        intended artificially to partition the markets ( reference        3 . Does it follow from the EC Treaty, in particular
        is made in this connection to the Court's judgment of                 Part IV thereof, that for the purposes of the second
        10    October   1978       in Case   3/78   Centrafarm    v.          paragraph of Article 136, the experience acquired —
        American Home Products Corporation ( 2 ))?                            in the form of measures favourable to the OCT —
                                                                              may not subsequently be reviewed or annulled to the
                                                                              detriment of the OCT ?
3 . Does it have any bearing on the reply to question 1
        whether the trade-mark proprietor's use of different
        trade marks in the country in which the importer
        purchases the product and in that in which the                        If that is indeed the case, can individuals then rely on
        importer sells the product is attributable to objective               it in proceedings before the national court ?
        circumstances outwith the control of the trade-mark
        proprietor, including, in particular, requirements of
        national health authorities or the trade-mark rights of           4 . To what extent-must the 1991 OCT Decision ( 91 /482/
        third parties ?                                                       EEC, OJ L 263 , 19 . 9 . 1991 , p. 1 ; corrigendum in OJ
                                                                              L 15 , 23 . 1 . 1993 , p. 33 ) be deemed to apply without
(') OJ L 40 , 11 . 2 . 1989 , p . 1 .                                         amendment during the 10 year period referred to in
( 2 ) [ 1978 ] ECR 1823 .                                                     Article 240 ( 1 ) thereof, given that the Council did not
                                                                              amend that decision before the expiry of the first
                                                                              ( period of) 5 years referred to in Article 240 ( 3 )
                                                                              thereof ?
 ---pagebreak--- 20 . 12 . 97              EN                   Official Journal of the European Communities                                           C 387/ 13
5 . Does the national court ( sitting in interlocutory                    8 . Is the answer to Question 7 different according to
     proceedings ) have jurisdiction, in circumstances such                     whether or not the content of the proposed decision is
     as those described in Joined Cases C-143/88 and C-92/                      consistent with higher rules of Community law ?
     89 Zuckerfabrik Siiderdithmarschen and Others and
     subsequent cases, to make an interim order requiring a
     Member State not to participate ( either actively or
     passively ) in the decision-making process within the
     Council of Ministers in the context of the second
     paragraph of Article 136 ?                                           Reference for a preliminary ruling from the Tribunal de
                                                                          Premiere Instance, Nivelles ( 9th Chamber), by judgment of
6 . On the assumption that assessment of the                              that court of 3 November 1997 in the case of Belgocodex
     circumstances referred to in Question 5 is a matter for                                         SA v. Belgian State
     the Court of Justice, rather than the national court,                                            ( Case C-381 /97 )
     are the circumstances described in the judgment of                                                 ( 97/C 387/21 )
     17 October 1997 — page 7, first full paragraph, ('On
     the basis of various factors . . .') up to and including             Reference has been made to the Court of Justice of the
     the second full paragraph on page 8 ( ending '. . .                  European Communities by a judgment of the Tribunal de
     excessively detrimental to the interests of the                      Premiere Instance ( Court of First Instance ), Nivelles ( 9th
     Community') — also in the light of the further                       Chamber), of 3 November 1997, which was received at
     reasoning in that judgment and in the judgment of                    the Court Registry on 7 November 1997, for a
     6 October 1997, such as to justify the injunction                    preliminary ruling in the case of Belgocodex SA v. Belgian
     referred to in Question 5 ?                                          State on the following questions :
7 . Does Article 5 of the EC Treaty — and more                            Does Article 2 of the First Council Directive 67/227/EEC
     specifically the principle of Community cooperation                  of 11 April 1967 (') on the harmonisation of legislation of
     with      other    Member       States  contained   therein —        Member States concerning turnover taxes, which
     preclude such an injunction by the court concerning                  establishes the principle of a common system of value
     the future participation of that Member State in the                  added tax, prevent a Member State — in this case Belgium
      decision-making process in that context, if                         — which has availed itself of the possibility provided for
                                                                           by Article 13 ( C ) of the Sixth Council Directive 77/388/
      (a ) the Member State voted in favour of the Council                 EEC of 17 May 1977 (2 ) on the harmonization of
            proposal at issue, notwithstanding that it was                 legislation of Member States concerning turnover taxes —
            aware that interlocutory proceedings were in                   Common system of value added tax: uniform basis of
            progress at the time concerning its voting                     assessment, and has thus given its taxpayers the right to
            intentions in the European Council of ' Ministers              opt for taxation of certain lettings of immovable property,
            and                                                            from abolishing that right of option and thus
                                                                           reintroducing the exemption to its full extent in
      ( b ) those ( initial ) interlocutory proceedings culminated         subsequent legislation ?
            in such an injunction a few hours after the
            Member       State    had    voted  in  favour   of  the       (') OJ , English Special Edition 1967, p . 14 ; EE 09 FI, p . 3 .
            proposal ?                                                     (2 ) OJ L 145 , 13 . 6 . 1977, p . 1 ; EE 09 FI, p . 54 .