CELEX: C1995/268/28
Language: en
Date: 1995-10-14 00:00:00
Title: Reference for a preliminary ruling by the High Court of Justice, Chancery Division, Patents Court, by order of that court of 13 July 1995, in the case of Beecham Group plc against Europharm of Worthing Ltd (Case C-268/95)

14. 10. 95            1 EN j               Official Journal of the European Communities                               No C 268/13
     by individuals from obstructing the free movement of             forces of law and order have either not been present or have
     fruit and vegetables, the French Republic has failed to          declined to take any active steps to prevent destruction from
     fulfil its obligations under the common organization of          taking place, or have failed to make use of information
     the market in agricultural products and Article 30 of the        available to them in order to avert incidents . Furthermore,
     EC Treaty in conjunction with Article 5 thereof,                 the facts communicated do not show that the French
                                                                      authorities have taken the measures necessary in order
— order the French Republic to pay the costs .                        effectively to penalize those responsible for the acts of
                                                                      destruction and menaces .
Pleas in law and main arguments adduced in support:
Article 30 of the EC Treaty must be regarded as forming part
of the common organization of the market in agricultural              Reference for a preliminary ruling by the High Court of
products . The right to the free movement of goods enshrined         Justice, Chancery Division, Patents Court, by order of that
in the Treaty obliges Member States to adopt all appropriate          court of 13 July 1995 , in the case of Beecham Group pic
measures to ensure compliance with that principle,                                   against Europharm of Worthing Ltd
including measures against individuals who compromise the
                                                                                               ( Case C-268/95 )
exercise of that right.
                                                                                                 ( 95/C 268/28 )
In 1993 , the Commission was forced to conclude that acts of
violence ( attacks upon, and the destruction of, shipments            Reference has been made to the Court of Justice of the
and means of transport, threats against lorry-drivers and             European Communities by an order of the High Court of
distributors of fruit and vegetables ) had ceased to be acts of       Justice, Chancery Division, Patents Court, of 13 July 1995 ,
an isolated and impulsive nature, as they had been in the             which was received at the Court Registry on 9 August 1995 ,
past, and had , at the prompting of certain groups such as            for a preliminary ruling in the case of Beecham Group pic
Coordination rurale, become part of an organized plan to              against Europharm of Worthing Ltd, on the following
control the supply of goods imported from other Member                questions :
States . Between April and July 1993 , shipments of Spanish
fruit and vegetables , in particular strawberries intended for        1.     that the provisions and effect of Article 47 of the
the French market or in transit on the territory of the French               Spanish Treaty of Accession to the European
Republic, were subjected to a campaign of harassment                         Communities will continue to apply to pharmaceutical
orchestrated by the Coordination rurale movement. In                         products
August and September, shipments of tomatoes from
Belgium were in turn targeted by Coordination rurale.                 1.1 imported from Spain, or
Between April and May 1994 , a fresh campaign of violence
was launched in France with a view to obstructing the free            1.2 first marketed in Spain
movement on French territory of strawberries arriving from
Spain and Morocco . In addition, the Commission received              until
information regarding various illegal activities by
organizations such as Coordination rurale, which continued                   ( a ) 7 October 1995 , or
to threaten and blackmail wholesale and retail commercial
centres offering for sale products from other Member States                  ( b ) 31 December 1995 , or
( for example, Spanish strawberries and Belgian
tomatoes ).                                                                  (c ) 7 October 1996 , or
Given that the Community is entitled, in view of the                         ( d ) 31 December 1996, or
repeated and serious infringements of the French Penal
Code which have taken place over several years ( acts of                     ( e ) the end of the third year after the particular
destruction and menaces by gangs ), to expect the French                           pharmaceutical, protected by a product patent in
authorities, in particular the forces of law and order and the                     one or more Member State(s ) of the European
judicial authorities , to take action to prevent and suppress                      Union and which was previously unpatentable in
such infringements on the basis of clear and positive                              Spain, has become patentable in Spain
instructions, by means of an appropriate, vigorous and
rapid system of police intervention putting an effective stop         stating which of such dates is applicable with regard to such
to such destruction and menaces, and by means of effective            acts .
judicial investigations undertaken with the resolute aim of
prosecuting offenders, the Commission is bound to                     2.     After the expiration of Article 47, in case where :
conclude that the response of the French authorities is
inadequate in structural terms .
                                                                      2.1 an undertaking is the proprietor ( the 'Proprietor') of a
                                                                             patent (the 'Patent') in one or more Member States of
It appears from the facts available to the Commission that,                  the European Communities ( the 'Member State') for a
all too often, and repeatedly over a number of years, the                    pharmaceutical product ( the 'Pharmaceutical');
 ---pagebreak--- No C 268/ 14           EN                   Official Journal of the European Communities                                      14 . 10 . 95
2.2 . the Pharmaceutical was first put on the market in a              preliminary ruling in the case of Benincasa v . Dentalkit srl
      country by the Proprietor after that country's accession         on the following questions :
      to the EC but at a time when the Pharmaceutical could
      not be protected by a product patent in the                      ( 1 ) is a plaintiff to be regarded as a consumer within the
      country ;
                                                                              meaning of the first paragraph of Article 13 and the
                                                                              first paragraph of Article 14 of the Convention on
2.3 a third party imports the Pharmaceutical from that                        jurisdiction and the enforcement of judgements in civil
      country into the Member State;                                          and commercial matters ('the Convention ') even if his
                                                                              action relates to a contract which he concluded not for
2.4 and the patent legislation in the Member State granted                    the purpose of a trade which he was already pursuing
      the proprietor of the Patent the right to oppose by legal               but a trade to be taken up only at a future date ( here : a
      action the importation of the Pharmaceutical from that                  franchising agreement concluded for the purpose of
      country,                                                                setting up a business )?
                                                                       (2 ) If question 1 is to be answered in the affirmative :
do the rules set forth in the EC Treaty concerning the free
movement of goods prevent the Proprietor from availing                        does point 1 of the first paragraph of Article 13 of the
himself of the right referred to in paragraph 2.4 above, in                   Convention ( contract for the sale of goods on
particular if:                                                                instalment credit terms) cover a franchising agreement
                                                                              which obliges the plaintiff to buy from the other party
      ( a ) the Proprietor had and continues to have a legal                  to the agreement, over a period of several ( three ) years,
            and/or ethical obligation to market and to                        the articles and goods required to equip and operate a
            continue marketing the Pharmaceutical in that                     business (without instalment credit terms having been
            country; and/or                                                   agreed ) and to pay an initial fee and, as from the second
                                                                              year of the business , a licence fee of 3 % of
      ( b ) that country's and/or EC legislation effectively                  turnover ?
            requires that, once the Pharmaceutical is put on
                                                                       ( 3 ) Does the court of a Member State specified in an
            the market in that country, the Proprietor supplies
                                                                              agreement conferring jurisdiction have exclusive
            and continues to supply sufficient quantities to
                                                                              jurisdiction pursuant to the first sentence of the first
            satisfy the needs of domestic patients; and/or
                                                                              paragraph of Article 17 of the Convention even when
                                                                              an action is inter alia for a declaration of the invalidity
      ( c ) that country's legislation grants to its authorities,
                                                                              of a franchising agreement in which the agreement
            and its authorities exercise, the right to fix the sale
                                                                              conferring jurisdiction is itself contained, the following
            price of the Pharmaceutical in that country and
            legislation prohibits the sale of the Pharmaceutical              wording ( English translation ) 'the courts in Florence
                                                                              have jurisdiction over any dispute concerning the
            at any other price; and/or
                                                                              interpretation , performance or other aspect of this
      ( d ) the price of the Pharmaceutical in that country has               contract' being separately accepted with a reference to
                                                                              Articles 1341 and 1342 of the Italian Codice Civile ?
            been fixed by its authorities at a level at which
            substantial exports of the Pharmaceutical from
            such country to the Member State are anticipated
            with the result that the economic value of the
            Patent would be significantly eroded and research          Appeal brought on 9 August 1995 by C. Kik against the
            and development for future pharmaceuticals                 order made on 19 June 1995 by the First Chamber of the
            planned by the Proprietor significantly                    Court of First Instance of the European Communities in
            underminded, contrary to the rationale                     Case T-107/94 between C. Kik and the Council of the
            underlying the recent introduction by the EC               European Union and the Commission of the European
            Council     of     the   Supplementary     Protection            Communities, supported by the Kingdom of Spain
            Certificate .
                                                                                               ( Case C-270/95 P )
                                                                                                  ( 95/C 268/30 )
                                                                       An appeal against the order made on 19 June 1995 by the
                                                                       Court of First Instance of the European Communities in
                                                                       Case T-107/94 between C. Kik and the Council of the
Reference for a preliminary ruling from the                            European Union and the Commission of the European
Oberlandesgericht Miinchen, by order of that court of                  Communities, supported by the Kingdom of Spain , was
  5 May 1995 , in the case of Benincasa v. Dentalkit srl               brought before the Court of Justice of the European
                          ( Case C-269/95 )                            Communities on 9 August 1995 by C. Kik, represented by
                            ( 95/C 268/29 )                            G. L. Kooy, of the Hague Bar, with an address for service in
                                                                       Luxembourg at the Chambers of N. Decker, 16 Avenue
                                                                       Marie-Thérèse .
Reference has been made to the Court of Justice of the
European Communities by an order of the                                The appellant claims that the Court should :
Oberlandesgericht Miinchen ( Higher Regional Court,
Munich ), Eighth Chamber, of 5 May 1995 , which was                    — set aside the decision of the Court of First Instance of
received at the Court Registry on 9 August 1995 , for a                      19 June 1995 dismissing as inadmissible the applicant's