CELEX: C1995/208/24
Language: en
Date: 1995-08-12 00:00:00
Title: Reference for a preliminary ruling from the College van Beroep voor het Bedrijfsleven by judgment of 24 May 1995 in the case of Affish BV and Rijksdienst voor de Keuring van Vee en Vlees (Case C-183/95)

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
 ---pagebreak--- 12 . 8 . 95            EN                 Official Journal of the European Communities                                No C 208/ 13
in the case of Affish BV and Rijksdienst voor de Keuring van         Pleas in law and main arguments adduced in support:
Vee en Vlees on the following question :
                                                                     — Excessive duration of proceedings : owing to the
Is Commission Decision 95/119/EC of 7 April 1995 valid in               duration proceedings of five years and six months the
so far as it extends to Surimi fishery products, also referred           Court of First Instance infringed the applicant's right to
to as kamaboko , as imported by the applicant, which come               a remedy within a reasonable time .
from regions of Japan other than those in which the
establishments investigated by a mission of experts from the         — Breach of the principle of oral proceedings; the Court of
Commission were located according to their report of                    First Instance did not deliver its judgment until 22
4 April 1995 , or at least from establishments other than               months after closure of the oral procedure, that is to say
those investigated , and in relation to products which,                 at a time when the oral procedure could no longer be and
following appropriate investigation upon their importation              was no longer in its mind .
into the Community, showed no sign of health risks ?
                                                                     — Infringement of recognized rules of evidence : in
                                                                        establishing the facts the Court fundamentally infringed
                                                                        recognized rules of evidence in relation to various sets of
                                                                        facts . Thus, from the beginning it employed an incorrect
                                                                        yardstick for evaluating the evidence in as much as it left
                                                                        out of account the applicant's submissions and
Appeal lodged on 14 June 1995 by Baustahlgewebe GmbH                    examined only whether the Commission had succeeded
against the judgment of the Court of First Instance ( First              'to the requisite legal standard ' in adducing evidence of
Chamber) of 6 April 1995 in Case T-145/89,
                                                                        specific factual assertions . This also constitutes an
             Baustahlgewebe GmbH v. Commission                          infringement of the judicial duty of elucidation and of
                       ( Case C-185/95 P)                               the right to a fair trial . By declining to investigate the
                          ( 95/C 208/25 )                               evidence offered by the applicant the Court of First
                                                                        Instance infringed its duty to conduct an unfettered
                                                                        appraisal of the evidence, the principle of in dubio pro
An appeal against the judgment delivered on 6 April 1995 by             reo and finally the applicant's right to a fair hearing.
the First Chamber of the Court of First Instance in Case
T-145/89         between Baustahlgewebe          GmbH and
                                                                     — Misapplication of provisions limited as to time
Commission was brought before the Court of Justice of the               contained in the Rules of Procedure : to accept witness
European Communities on 6 April 1995 by Baustahlgewebe                  evidence as offered in the reply would manifestly not
GmbH, established in Gelsenkirchen, represented by
                                                                        have led to a delay in the proceedings . The reply together
Joachm Sedemund and Dr Frank Montag, of Deringer                        with the offer of witness evidence was dated 30 April
Tessin Herrmann & Sedemund , Cologne and Brussels, with                  1990, whilst the oral hearing took place more than three
an address for service in Luxembourg at the Chambers of                 years later, namely on June 1993 .
Aloyse May, 31 Grand'rue, L-1661 Luxembourg.
                                                                     — Infringement of the right to a fair hearing. The Court of
The appellant claims that the Court should :                            First Instance erred in dismissing the request made by the
                                                                        applicant in its application that the Commission be
1 . Set aside the judgment of the Court of First Instance of            ordered to produce certain documents to it for
     the European Communities ( First Chamber ) of 6 April              inspection . In the administrative procedure before the
     1995 in Case T-145/89 (') in as much as it sets the                Commission the applicant was not legally represented
     amount of the fine imposed on the applicant at ECU 3               and had not inspected the documents in the file; this was
     million ( paragraph 2 of the operative part ), dismisses the       essentially attributable to the fact that the statement of
     remaining claims ( paragraph 3 of the operative part) and          objections held the ' German group ' and the
     orders the applicant to bear its own costs and one-third           Fachverband       Betonstahlmatten,      rather  than     the
     of the Commission 's costs ( paragraph 4 of the operative          applicant, responsible for alleged infringements of
     part );                                                            competition law. At no time did the applicant have
                                                                        available to it the totality of the documents against it and
2 . Annul Articles 1 , 2 and 3 of Commission Decision                   in its favour . On no account may the Court of First
     89/515/EEC ( 2 ) of 2 August 1989 relating to a                    Instance decline to order the production of those
     proceeding under Article 85 of the EC Treaty                        documents by relying on the argument that the applicant
     ( IV/31 . 553 — Welded Steel Mesh ) in so far as they affect       gave no indication that other documents would have
     the applicant and have not already been annulled by the             been relevant to its defence. A similarly serious
     aforementioned judgment of the Court of First Instance             infringement of the applicant's rights of the defence is
     in Case T-145 /89 ;                                                constituted by the dismissal of the request that the
                                                                         Commission be ordered to produce to the applicant for
3 . In the alternative, reduce to a reasonable amount the               inspection the documentation communicated to the
     fine of ECU 3 million imposed in paragraph 2 of the                 Commission by the Federal Cartel Office relating to the
     operative part of the aforementioned judgment of the               structural crisis cartel and the documents concerning the
     Court of First Instance in Case T-145/ 89 ;                        trilateral negotiations between the Commission, the
                                                                         Federal Cartel Office and the representatives of the
4 . Order the Commission to pay the costs at first instance              German undertakings involved in the structural crisis
     and on appeal .                                                    cartel . Irrespective of whether the structural crisis cartel