CELEX: C1995/208/23
Language: en
Date: 1995-08-12 00:00:00
Title: Reference for a preliminary ruling from the Finanzgericht Hamburg by judgment of 19 May 1995 in the case of T. Port GmbH & Co v. Hauptzollamt Hamburg-Jonas (Case C-182/95)

No C 208/ 12            EN                  Official Journal of the European Communities                                        12 . 8 . 95
Reference for a preliminary ruling from the Tribunal de                Reference for a preliminary ruling from the Finanzgericht
Commerce de Nivelles by judgment of that court of 2 June               Hamburg by judgment of 19 May 1995 in the case of T. Port
1995 in the case of Biogen Inc. v. Smithkline Beecham                           GmbH & Co v. Hauptzollamt Hamburg-Jonas
                           Biologicals SA                                                          ( Case C-l 82/95 )
                         ( Case C-181 /95 )                                                           ( 95/C 208/23 )
                           ( 95/C 208/22
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by a judgment of the Joint Senate of
Reference has been made to the Court of Justice of the                 the Finanzgericht ( Finance Court) Hamburg for the Lander
European Communities by a judgment of the Tribunal de                  of the Free and Hanseatic City of Hamburg, Lower Saxony
Commerce de Nivelles ( Commercial Court, Nivelles ) of                 and Schleswig-Holstein, Fourth Senate, of 19 May 1995 ,
2 June 1995 , which was received at the Court Registry on              which was received at the Court Registry on 12 June 1995 ,
12 June 1995 , for a preliminary ruling in the case of Biogen          for a preliminary ruling in the case of T. Port GmbH & Co v.
Inc . v. Smithkline Beecham Biologicals SA on the following            Hauptzollamt ( Principal Customs Office ) Hamburg-Jonas
questions :                                                            on the following questions :
                                                                       1 . Is the first paragraph of Article 234 of the EC Treaty to
1 . In the event that the holder of the basic patent or his                  be interpreted as meaning that the application of
     successor in title is a person other than the holder of the             Articles I, II and III of the GATT takes precedence in the
     authorization to place the medical product concerned                    Federal Republic of Germany over Articles 18 and 19 in
     on the market, is the latter obliged to provide to the                  conjunction with Article 17 of Regulation ( EEC )
     patent holder on request, or, where appropriate, several                No 404/93 (')?
     patent holders when they so request, the 'copy' of that
     authorization which is referred to in Article 8 ( 1 ) ( b ) of
     Council Regulation ( EEC ) No 1768/92 of 18 June 1992
                                                                       2 . ( a ) Is Regulation ( EC ) No 478/95 ( 2 ), which is based on
                                                                                   Regulation ( EEC ) No 404/93 , valid ?
     concerning the creation of a supplementary protection
     certificate for medicinal products (')?
                                                                             ( b ) If so, is the first paragraph of Article 234 of the EC
                                                                                   Treaty to be interpreted as meaning that the
2 . Where one and the same product is covered by several                           application of Article XIII of the GATT takes
      basic patents belonging to different holders, does                           precedence over that regulation ?
      Regulation ( EEC ) No 1768/92 preclude the grant of a
     supplementary protection certificate to each holder of a          3 . In the event that questions 1 and 2 ( b ) are answered in
      basic patent ?                                                         the affirmative : are Community citizens entitled to rely
                                                                             in proceedings before the courts of Member States of the
                                                                             Community on the precedence of the aforesaid GATT
3 . Regard being had to the wording of Article 6 of                          provisions as regards their application ?
      Regulation ( EEC ) No 1768/92, may the holder of the
      authorization to place the medicinal product on the
      market refuse to give a holder of a basic patent or his          4 . On what conditions may a court of a Member State
      successor in title the copy of that authorization referred             grant interim relief by issuing an interim injunction
      to in Article 8 ( 1 ) ( b ) of the regulation and thereby              where it has doubts as to the applicability of the
      deprive him of the possibility of completing his                       secondary Community law which underlies the legal
      application for a             supplementary protection                 appraisal ?
     certificate ?
                                                                       (!) OJ No L 47, 25 . 2 . 1993 , p . 1 .
                                                                       ( 2 ) OJ No L 49 , 4 . 3 . 1995 , p . 13 .
4 . May the relevant administrative and/or government
      authority which granted the authorization to place the
      product on the market or is the depositary of an original
      or a copy of the said authorization refuse to supply a
      copy to the holder of the basic patent or patents
      concerned or to his successor in title or may it decide,         Reference for a preliminary ruling from the College van
      arbitrarily or subject to certain conditions , whether it is     Beroep voor het Bedrijfsleven by judgment of 24 May 1995
      advisable to provide or communicate such copy with a             in the case of Affish BV and Rijksdienst voor de Keuring van
      view to its being used to support an application for a                                            Vee en Vlees
      supplementary protection certificate under the                                                ( Case C-l 83/95 )
      provisions of Council Regulation ( EEC ) No 1768/92 ?
                                                                                                       ( 95/C 208/24 )
(>) OJ No L 182 , 2 . 7. 1992 , p . 1 .                                 Reference has been made to the Court of Justice of the
                                                                        European Communities by a judgment of the College van
                                                                        Beroep voor het Bedrijfsleven ( Administrative Court for
                                                                        Trade and Industry) of 24 May 1995 , which was received at
                                                                        the Court Registry on 12 June 1 995 , for a preliminary ruling