CELEX: C1996/336/17
Language: en
Date: 1996-11-09 00:00:00
Title: JUDGMENT OF THE COURT of 11 July 1996 in Joined Cases C-71/94, C-72/94 and C-73/94 (references for a preliminary ruling by the Bundesgerichtshof): Eurim-Pharm Arzneimittel GmbH v. Beiersdorf AG and Others (Repackaging of trade-marked products - Article 36 of the EC Treaty)

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 ,
 ---pagebreak--- No C 336/ 10        EN                  Official Journal of the European Communities                                    9 . 11 . 96
— it is shown that the repackaging cannot affect the                               JUDGMENT OF THE COURT
  original condition of the product inside the packaging;                                   of 11 July 1996
  such is the case, in particular, where the importer has
  merely carried out operations involving no risk of the           in Case C-228/94 ( reference for a preliminary ruling from
  product being affected, such as, for example, the                the High Court of Justice of England and Wales, Queen's
  removal of blister packs from their original external            Bench Division ): Stanley Charles Atkins v. Wrekin District
  packaging and their insertion with one or more original                        Council, Department of Transport ( l )
  packages into new external packaging, or their insertion         (Equal treatment for men and women — Concessionary
  in another original package, the fixing ofself-stick labels      fares on public passenger transport services — Scope of
   on original external packaging or blister packs, or the               Directive 79/7/EEC — Link with retirement age)
  addition to the packaging of new user instructions or                                        96/C 336/ 18 )
  information; it is for the national court to ascertain
  whether the cutting of blister packs or the reprinting of
   batch numbers on them are carried out in such a manner
  as to exclude any real risk of affecting the original
  condition of the tablets inside; that must be regarded as
  being the case where, for example, those operations are                           (Language of the case: English)
  authorized and supervised by a public authority with a
  view to ensuring that the product remains intact; it is
  also for the national court to verify that the original
  condition of the product inside the packaging is not
  indirectly affected, for example, by the fact that the           In Case C-228/94 : reference to the Court pursuant to
  external or inner packaging of the repackaged product            Article 177 of the EC Treaty from the High Court of Justice
  or new user instructions of information omits certain            of England and Wales, Queen's Bench Division, for a
  important information or gives inaccurate information,           preliminary ruling in the proceedings pending before that
  or by the fact that the packaging of the repackaged              court between Stanley Charles Atkins and Wrekin District
  product is not such as to give the product adequate              Council, Department of Transport — on the interpretation
  protection,                                                      of Council Directive 79/7/EEC of 19 December 1978 on the
                                                                   progressive implementation of the principle of equal
                                                                   treatment for men and women in matters of social
— the new packaging clearly states who repackaged the              security ( 2 ) — the Court, composed of: G. C. Rodriguez
  product and the name of the manufacturer in print such           Iglesias, President, C. N. Kakouris, D. A. O. Edward,
  that a person with normal eyesight, exercising a normal          Presidents of Chambers, G. F. Mancini , J. C. Moitinho de
  degree of attentiveness, would be in a position to               Almeida , P. J. G. Kapteyn ( Rapporteur ), P. Jann, H.
  understand; however, it is not necessary to indicate that        Ragnemalm and L. Sevon, Judges ; M. B. Elmer,
  the repackaging was carried out without the                      Advocate-General; H. von Holstein, Deputy Registrar, gave
  authorization of the trade-mark owner,                           judgment on 11 July 1996 , in which it ruled :
— 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 must not be
  defective, ofpoor quality, or untidy; it is for the national     On a proper interpretation of Article 3 (1 ) of Council
                                                                   Directive 79/7/EEC of 19 December 1978 on the
  court to ascertain whether the insertion into single
  external packaging of both original external packaging           progressive implementation of the principle of equal
  and loose blister packs constitutes an untidy form of            treatment for men and women in matters ofsocial security, a
                                                                   scheme such as that provided for in Section 93 (7) of the
  packaging liable to damage the reputation of the trade
  mark; as for the cutting of blister packs; it is for that        Transport Act 1985 and implemented and operated by
  court to assess in each particular case whether it has been      Wrekin District Council, under which concessionary fares
  carried out in such a manner that the reputation of the          on public passenger transport services are granted to certain
  trade mark might suffer; and                                     classes of persons, including certain elderly persons, does
                                                                   not fall within the scope of the Directive.
— the importer gives notice to the trade mark owner before
  the repackaged product is put on sale, and, on demand,
  supplies him with a specimen of the repackaged                   (') OJ No C 275 , 1 . 10 . 1994 .
  product.                                                         (2 ) OJ No L 6 , 19 79, p . 24 .
H OJ No C 120, 30 . 4 . 1994 .