CELEX: C1998/166/13
Language: en
Date: 1998-05-30 00:00:00
Title: Appeal brought on 3 April 1998 by Edouard Dubois et Fils SA against the judgment delivered on 29 January 1998 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-113/96 between Edouard Dubois et Fils SA, on the one hand, and Council of the European Union and Commission of the European Communities, on the other (Case C-95/98 P)

C 166/8               EN                Official Journal of the European Communities                                     30.5.98
laws of the Member States relating to trade marks (1) (the                   continue to manufacture and market product X
Trade Mark Directive') that Member States are precluded                       in Member States other than Member State B?
from introducing or maintaining a legal position whereby
trade mark rights are exhausted where the trade mark is            2. To what extent is it relevant to the answer to
marketed outside the Community under that mark?                         Question 1 that:
(1) OJ L 40 of 11.2.1989, p. 1.                                         (i)    the marketing authorisation for medicinal
                                                                               product X ceased to have effect in Member State
                                                                               B as a result of voluntary surrender on the part
                                                                               of the person to whom it had been granted; and/
                                                                               or
                                                                        (ii)   the formulation of medicinal product Y was
Reference for a preliminary ruling by the Divisional                           developed and introduced in order to provide a
Court, Queen's Bench Division, by order of that court of                       benefit to public health which medicinal product
31 July 1997, in the case of The Queen against The                             X (manufactured according to a different
Licensing Authority Established by the Medicines Act                           formulation) does not provide; and/or
1968 (acting by the Medicines Control Agency), ex parte:
     1) Rhône-Poulenc Rorer Ltd 2) May & Baker Ltd.                     (iii) that benefit to public health would not be
                       (Case C-94/98)                                          achieved if product X and product Y are both on
                                                                               the market in Member State B at the same time;
                        (98/C 166/12)
                                                                               and/or
Reference has been made to the Court of Justice of the                  (iv) the differences between the formulations of
European Communities by an order of the Divisional                             medicinal product X and medicinal product Y
Court, Queen's Bench Division, of 31 July 1997, which                          are such that neither product may lawfully be
was received at the Court Registry on 1 April 1998, for a                      marketed under the marketing authorisation
preliminary ruling in the case of The Queen against The                        applicable to the other; and/or
Licensing Authority Established by the Medicines Act
1968 (acting by the Medicines Control Agency), ex parte:                (v)    the competent authority possesses the relevant
1) Rhône-Poulenc Rorer Ltd 2) May & Baker Ltd, on the                          data required under Directive 65/65/CEE in
following questions:                                                           relation to both product X and product Y; and/or
                                                                        (vi) the competent authority considers that the
1. In a case where medicinal product X is sought to be                         prohibition on imports of product X from
    imported from Member State A into Member State B,                          Member State A would have the effect of
    is it permissible for the person who proposes to place                     partitioning the market; and/or
    the imported product upon the market in Member
    State B to seek and obtain a marketing authorisation                (vii) the competent authority considers that there are
    from the competent authority in Member State B                             no grounds within Article 36 of the EC Treaty
    without complying with the requirements of Council                         which would justify a prohibition on imports
    Directive 65/65/EEC (1) (as amended) if:                                   and sales of product X?
    (i)   medicinal product X is the subject of a marketing        (1) Council Directive 65/65/EEC of 26 January 1965 on the
          authorisation granted in Member State A and was              approximation of provisions laid down by law, regulation or
          the subject of a marketing authorisation which               administrative action relating to proprietary medicinal
          has ceased to have effect in Member State B; and             products (OJ 22 of 9.2.1965, p. 369 (SE SER1 (65Ð66)
                                                                       p. 20)).
    (ii) medicinal product X has the same active
          ingrediens and therapeutic effect as medicinal
          product Y, but is not manufactured according to
          the same formulation as medicinal product Y; and
    (iii) medicinal product Y is the subject of a marketing        Appeal brought on 3 April 1998 by Edouard Dubois et
          authorisation granted in Member State B, but is          Fils SA against the judgment delivered on 29 January
          not the subject of a marketing authorisation             1998 by the Fifth Chamber of the Court of First Instance
          granted in Member State A; and                           of the European Communities in Case T-113/96 between
                                                                   Edouard Dubois et Fils SA, on the one hand, and Council
    (iv) the marketing authorisations referred to in (i) and       of the European Union and Commission of the European
          (iii) above were granted to different members of                             Communities, on the other
          the same group of companies and the                                              (Case C-95/98 P)
          manufacturers of medicinal products X and Y are
                                                                                             (98/C 166/13)
          also members of that group of companies; and
    (v) companies within the same group as the holder of           An appeal against the judgment delivered on 29 January
          the marketing authorisation for product X                1998 by the Fifth Chamber of the Court of First Instance
 ---pagebreak--- 30.5.98               EN                 Official Journal of the European Communities                                      C 166/9
of the European Communities in Case T-113/96 between                Action brought on 3 April 1998 by the Commission of the
Edouard Dubois et Fils SA, on the one hand, and Council                 European Communities against the French Republic
of the European Union and Commission of the European
                                                                                            (Case C-96/98)
Communities, on the other, was brought before the Court
of Justice of the European Communities on 3 April 1998                                       (98/C 166/14)
by Edouard Dubois et Fils SA, represented by Pierre
Ricard, avocat before the French Conseil d'EÂtat and Cour
de Cassation, and Alain Crosson de Cormier, of the Paris
Bar, with an address for service in Luxembourg at the               An action against the French Republic was brought before
Chambers of Marc Feiler, 67 Rue Ermesinde.                          the Court of Justice of the European Communities on
                                                                    3 April 1998 by the Commission of the European
                                                                    Communities, represented by Paolo Stancanelli, of its
The appellant claims that the Court should:                         Legal Service, and Olivier Couvert-Castera, national civil
                                                                    servant on secondment to that service, acting as Agents,
                                                                    with an address for service in Luxembourg at the office of
Ð set aside the judgment of the Court of First Instance,            Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
    with all the legal consequences entailed thereby;
Ð declare the defendants liable under the second                    The Commission of the European Communities claims
    paragraph of Article 215 of the Treaty for the damage           that the Court should:
    caused to it by the repercussions on its activities as an
    authorised customs agent;
                                                                    Ð declare that, by failing to adopt the special measures
                                                                        necessary for the conservation of bird habitats in the
Ð order the defendants jointly and severally to pay the                 Marais Poitevin and the appropriate steps to avoid
    sum of FF 112 339 702 by way of compensation for                    deterioration of those habitats, the French Republic
    that damage;                                                        has failed to fulfil its obligations under Article 4 of
                                                                        Directive 79/409/EEC (1);
Ð order the defendants to pay the costs.
                                                                    Ð order the French Republic to pay the costs.
Pleas in law and main arguments:
                                                                    Pleas in law and main arguments:
On the question of no-fault liability, the Court of First
Instance erred in holding that the cause of the damage was
the Single European Act and the establishment of an area
without internal frontiers to which it led. New obligations         Article 4(1) and (2) of Council Directive 79/409/EEC of
to act were imposed at the time on the Community                    2 April 1979 on the conservation of wild birds lays down
institutions, particularly in respect of the introduction of        the obligation to classify the most suitable territories as
compensatory support measures to facilitate the                     Special Protection Areas (SPAs) for the conservation of the
adaptation of the profession of customs agent.                      habitats of the species to which the Directive applies;
                                                                    Article 4(4) lays down the obligation to take appropriate
                                                                    steps to avoid deterioration of the habitats in the
On the question of liability for fault, the Court of First          protection areas. According to the case-law of the
Instance erred in holding that there was no legal                   Court (2), the latter obligation applies not only to
obligation to act incumbent on the institutions and that,           territories actually classified as SPAs, but also to territories
therefore, the failure to take appropriate measures could           which should have been so classified.
not give rise to liability and on the part of the
Community. The institutions chose to act by adopting
Council Regulation (EEC) No 3904/92 of 17 December                  The territory of the Marais Poitevin classified as an SPA is
1992 to adapt the profession of customs agent to the                insufficient. An area of 29 790 hectares is currently
internal market (1). That action on the part of the                 classified as such. That classification took place late, in
institutions was, however, very piecemeal and inadequate.           stages and after 1991. According to the most relevant
The Court of First Instance also erred in holding that              scientific data available, however, namely the inventory of
there was, in any event, no breach of a higher rule of the          Zones Importantes pour la Conservation des Oiseaux
law for the protection of individuals. There was a breach           (important areas for the conservation of birds) (ZIOC),
of the principle of vested rights as the profession of              published in 1994 by the French Ministry of the
customs agent had been recognised by Community                      Environment, 77 980 hectares exhibit the objective
legislation.                                                        characteristics justifying classification as an SPA. The
                                                                    inadequate nature of the appropriate steps intended to
(1) OJ L 394 of 31.12.1992, p. 1.                                   avoid deterioration of the habitats is due to the absence of
                                                                    suitable protective measures and to interference with and
                                                                    disturbances of natural habitats, in particular, the
                                                                    disappearance of natural water meadows as they are