CELEX: C1996/336/16
Language: en
Date: 1996-11-09 00:00:00
Title: JUDGMENT OF THE COURT of 11 July 1996 in Case C-39/94 (reference for a preliminary ruling from the Tribunal de Commerce, Paris): Syndicat français de l'Express International (SFEI) and Others v. La Poste and Others (State aid - Jurisdiction of national courts when the matter is also pending before the Commission - Definition of State aid - Consequences of infringement of the last sentence of Article 93 (3) of the EC Treaty)

No C 336/8           EN                   Official Journal of the European Communities                                     9 . 11 . 96
Holstein, Deputy Registrar, L. Hewlett, Administrator, has                    the product inside the packaging is not indirectly
given a judgment on 11 July 1996 in which it rules :                          affected, for example, by the fact that the external or
                                                                              inner packaging of the repackaged product or new
                                                                              user instructions or information omits certain
1 . The reliance by a trade mark owner on his rights as                       important information or gives inaccurate
    owner in order to prevent an importer from marketing a                    information, or the fact that an extra article inserted
    product which was put on the market in another                            in the packaging by the importer and designed for
    Member State by the owner or with his consent where                       the ingestion and dosage of the product does not
    that importer has repackaged the product and reaffixed                    comply with the method of use and the doses
    the trade mark without the owner 's authorization, is to                  envisaged by the manufacturer,
    be assessed on the basis of the combined provisions of
    national trade mark law and Article 7 of the first                     — the new packaging clearly states who repackaged the
    Council Directive (89/104/EEC) of 21 December 1988                        product and the name of the manufacturer in print
    to approximate the laws of the Member States relating                     such that a person with normal eyesight, exercising a
    to trade marks, interpreted in the light of Article 36 of                 normal degree of attentiveness, would be in a
    the EC Treaty.                                                            position to understand; similarly, the origin of an
                                                                              extra article from a source other than the trade-mark
2 . Save in the circumstances defined in Article 7 (2),                       owner must be indicated in such a way as to dispel
                                                                              any impression that the trade-mark owner is
    Article 7 (1 ) of Directive 89/104/EEC precludes the
    owner of a trade mark from relying on his rights as                       responsible for it; however, it is not necessary to
    owner to prevent an importer from marketing a product                     indicate that the repackaging was carried out
    which was put on the market in another Member State                       without the authorization of the trade-mark
                                                                              owner,
    by the owner or with his consent, even if that importer
    repackaged the product and reaffixed the trade mark to
    it without the owner 's authorization .                                — the presentation of the repackaged product is not
                                                                              such as to be liable to damage the reputation of the
                                                                              trade mark and of its owner; thus, the packaging
3 . Article 7 (2) of Directive 89/104/EEC must be                             must not be defective, of poor quality, or untidy;
    interpreted as meaning that the trade mark owner may                      and
    legitimately oppose the further marketing of a
    pharmaceutical product where the importer has                          — the importer gives notice to the trade-mark owner
    repackaged the product and reaffixed the trade mark                        before the repackaged product is put on sale, and, on
    unless :                                                                  demand, supplies him with a specimen of the
                                                                               repackaged product.
    — its is established that reliance on trade mark rights by
        the owner in order to oppose the marketing of                (>) OJ No C 338 , 15 . 12 . 1993 .
        repackaged particulars under that trade mark would           ( 2 ) OJ No L 40, 1989 , p . 1 .
        contribute to the artificial partitioning of the
        markets between Member States; such is the case, in
        particular, where the owner has put an identical
        pharmaceutical product on the market in several
        Member States in various forms of packaging, and
        the repackaging carried out by the importer is                              JUDGMENT OF THE COURT
        necessary in order to market the product in the                                       of 11 July 1996
        Member State of importation, and is carried out in
        such conditions that the original condition of the           in Case C-39/94 ( reference for a preliminary ruling from the
        product cannot be affected by it; that condition does        Tribunal de Commerce, Paris ): Syndicat fran^ais de
        not, however, imply that it must be established that         l'Express International ( SFEI ) and Others v. La Poste and
        the trade mark owner deliberately sought to                                                Others ( 1 )
        partition the markets between Member States,                  (State aid —Jurisdiction ofnational courts when the matter
                                                                     is also pending before the Commission — Definition ofState
    — it is shown that the repackaging cannot affect the             aid — Consequences ofinfringement of the last sentence of
        original condition of the product inside the                                 Article 93 (3) of the EC Treaty)
        packaging; such is the case, in particular, where the                                  ( 96/C 336/16 )
        importer has merely carried out operations involving
         no risk of the product being affected, such as, for                          (Language of the case: French)
        example, the removal of blister packs, flasks, phials,
        ampoules or inhalers from their original external
        packaging and their replacement in new external               (Provisional translation; the definitive translation will be
        packaging, the fixing of self-stick labels on the inner                 published in the European Court Reports)
        packaging of the product, the addition to the
        packaging of new user instructions or information,            In Case C-39/94 : reference to the Court pursuant to
         or the insertion of an extra article; it is for the          Article 177 of the EC Treaty by the Tribunal de Commerce,
         national court to verify that the original condition of      Paris, for a preliminary ruling in the proceedings pending
 ---pagebreak--- 9 . 11 . 96            EN                Official Journal of the European Communities                                 No C 336/9
before that court between Syndicat fran^ais de l'Express                           JUDGMENT OF THE COURT
International ( SFEI ) and Others and La Poste and Others on                                of 11 July 1996
the interpretation of Articles 92 and 93 of the EC Treaty, the
Court, composed of: G. C. Rodriguez Iglesias, President,            in Joined Cases C-71/94 , C-72/94 and C-73/94 ( references
C. N. Kakouris, J. -P. Puissochet, and G. Hirsch ( Presidents       for a preliminary ruling by the Bundesgerichtshof):
                                                                    Eurim-Pharm Arzneimittel GmbH v. Beiersdorf AG and
of Chambers ), G. F. Mancini , C. Gulmann ( Rapporteur ),
J. L. Murray, P. Jann and H. Ragnemalm, Judges; F. G.                                           Others ( 1 )
Jacobs, Advocate-General ; D. Louterman-Hubeau ,                    (Repackaging oftrade-markedproducts — Article 36 ofthe
Principal Administrator, for the Registrar, has given a                                        EC Treaty)
judgment on 11 July 1996 in which it ruled :                                                 ( 96/C 336/ 17 )
1 . A national court, seised of a request that it should draw                       (Language of the case: German)
     the appropriate conclusions from an infringement of the
     last sentence of Article 93 (3) of the Treaty, where the
     matter has also been referred to the Commission, which         (Provisional translation ; the definitive translation will be
     has not yet given a final decision on the question                      published in the European Court Reports)
     whether the State measures constitute State aid, is not
     required to declare that it lacks jurisdiction or to stay
     proceedings until such time as the Commission has              In Joined Cases C-71 /94 , C-72/94 and C-73/94 , references
     adopted a position on how the measures in question are         to the Court under Article 177 of the EC Treaty by the
     to be categorized. With a view to determining whether          Bundesgerichtshof ( Federal Court of Justice ) for a
     those measures should have been notified to the                preliminary ruling in the proceedings pending before that
     Commission, a national court may have cause to                 court between Eurim-Pharm Arzneimittel GmbH and
     interpret and apply the concept of aid. In case of doubt,      Beiersdorf AG ( C-71 /94 ), Boehringer Ingelheim KG
     it may ask the Commission for clarification.                   ( C-72/94 ), Farmitalia Carlo Erba GmbH ( C-73/94 ) on the
     Furthermore, it may or must, in accordance with the            interpretation of Article 36 of the EC Treaty in relation to
     second and third paragraphs of Article 177 of the EC           trade marks, the Court, composed of: G. C. Rodriguez
     Treaty, refer a question to the Court of Justice for a         Iglesias, President, C. N. Kakouris, J. -P. Puissochet and G.
     preliminary ruling. Where it consults the Commission or        Hirsch ( Presidents of Chambers ), G. F. Mancini, J. C.
     refers a question to the Court, it must decide whether it      Moitinho de Almeida , C. Gulmann ( Rapporteur ), P. Jann
     is necessary to order interim measures in order to             and H. Ragnemalm, Judges; Advocate-General : F. G.
     safeguard the interests of the parties pending final           Jacobs, for the Registrar : H. von Holstein, Deputy
     judgment.                                                      Registrar, L. Hewlett, Administrator has given a judgment
                                                                    on 11 July 1996 in which it rules :
2 . The provision of logistical and commercial assistance by
     a public undertaking to its subsidiaries, which are            Article 36 of the EC Treaty must be interpreted as meaning
     governed by private law and carry on an activity open to       that a trade-mark owner may rely on his rights as owner to
     free competition, is capable of constituting State aid         prevent an importer from marketing a pharmaceutical
     within the meaning of Article 92 of the EC Treaty if the       product which was put on the market in another Member
     remuneration received in return is less than that which        State by the owner or with his consent, where that importer
     would have been demanded under normal market                   has repackaged the product in new external packaging
     conditions.                                                    through which the trade mark affixed to the original
                                                                    packaging has been made visible, or where he has modified
                                                                    the contents and the appearance of original external
3 . A national court requested to order the repayment of            packaging while preserving the trade mark affixed thereto
     aid must grant that application if it finds that the aid       by the manufacturer, unless:
     was not notified to the Commission, unless by
     reason of exceptional circumstances repayment is               — it is established that reliance on trade mark rights by the
     inappropriate.                                                     owner in order to oppose the marketing of repackaged
                                                                        products under that trade mark would contribute to the
                                                                        artificial partitioning of the markets between Member
4 . A recipient of aid who does not verify that the aid has             States; such is the case, in particular, where the owner
     been notified to the Commission in accordance with                 has put an identical pharmaceutical product on the
     Article 93 (3) of the Treaty cannot incur liability solely         market in several Member States in various forms of
     on the basis of Community law.                                     packaging, and the repackaging carried out by the
                                                                        importer is necessary in order to market the product in
                                                                        the Member State of importation, and also carried out in
(M OJ No C 76 , 12 . 3 . 1994 .                                         such conditions that the original condition of the
                                                                        product cannot be affected by it; that requirement does
                                                                        not, however, imply that it must be established that the
                                                                        trade mark owner deliberately sought to partition the
                                                                        markets between Member States ,