CELEX: C1997/026/06
Language: en
Date: 1997-01-25 00:00:00
Title: JUDGMENT OF THE COURT (Second Chamber) of 14 November 1996 in Case C-305/94 (reference for a preliminary ruling from the Tribunal du Travail, Brussels): Claude Rotsart de Hertaing v. J. Benoidt SA, in liquidation, and IGC Housing Service SA (Safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses - Transfer to the transferee of the rights and obligations arising from a contract of employment - Date of transfer)

No C 26 /4                EN                    Official Journal of the European Communities                                      25 . 1 . 97
1 . ( a ) When a competent authority of a Member State                                      JUDGMENT OF THE COURT
            concludes that a proprietary medicinal product
                                                                                                    ( Second Chamber )
            covered by a marketing authorization in another
            Member State and a proprietary medicinal product                                     of 14 November 1996
            for which it has already issued a marketing
            authorization are manufactured by independent                  in Case C-305/94 (reference for a preliminary ruling from
             companies pursuant to agreements concluded with               the Tribunal du Travail, Brussels): Claude Rotsart de
             the same licensor and that those two products,                Hertaing v. J. Benoidt SA, in liquidation, and IGC
            although not identical in all respects, have at                                      Housing Service SA (*)
             least been manufactured according to the same
             formulation and using the same active ingredient              (Safeguarding of employees ' rights in the event of transfers
            and that they also have the same therapeutic                   of undertakings, businesses or parts of businesses —
             effects, it must treat the imported proprietary                Transfer to the transferee of the rights and obligations
             medicinal product as being covered by                 the     arising from a contract of employment — Date of
             latter marketing authorization unless there           are                                     transfer)
             countervailing considerations relating to             the                                  ( 97/C 26/06 )
             effective protection of the life and health            of
             humans .
                                                                                             (Language of the case: French)
        (b) If the competent authority concludes that the
             proprietary medicinal product to be imported does
             not satisfy those criteria, a new marketing
             authorization is required. That authorization can                (Provisional translation; the definitive translation will be
             be issued only in accordance with the conditions                         published in the European Court Reports)
             laid down in Articles 3 and 4 of Council
             Directive 65/65/EEG of 26 January 1965 on the
             approximation of provisions laid down by law,                  In Case C-305/94 : reference to the Court pursuant to
             regulation or administrative action relating to                Article 177 of the EC Treaty from the Tribunal du Travail
             proprietary medicinal products, as amended in                  ( Labour Court), Brussels, for a preliminary ruling in the
             particular by Council Directive 87/21 /EEC of                  proceedings pending before that court between Claude
              22 December 1986.                                             Rotsart de Hertaing and J. Benoidt SA, in liquidation, and
                                                                            IGC Housing Service SA — on the interpretation of
                                                                            Council Directive 77/187/EEC of 14 February 1977 on
                                                                            the approximation of the laws of the Member States
 2 . The fact that the grantor of the licences in respect of                relating to the safeguarding of employees' rights in the
        the two proprietary medicinal products in question is               event of transfers of undertakings, businesses or parts of
        situated outside the European Community does not                    businesses (2 ) — the Court ( Second Chamber ), composed
        affect the answer given above.                                      of: G. F. Mancini, President of the Chamber ( Rapporteur),
                                                                            J. L. Murray and G. Hirsch, Judges; C. O. Lenz,
                                                                            Advocate-General; R. Grass, Registrar, has given a
                                                                            judgment on 14 November 1996 , in which it has ruled:
 3 . The holder of an original marketing authorization
         issued pursuant to the procedure referred to in
         Directive 65/65/EEC may rely on the provisions of                   1 . Article 3 (1 ) of Council Directive 77/187/EEC of
         that Directive, as amended in particular by Directive                    14 February 1977 on the approximation of the laws
         87/21 /EEC, and specifically on Article 5 thereof, in                    of the Member States relating to the safeguarding
         proceedings before a national court in order to                          of employees ' rights in the event of transfers of
         challenge the validity of an authorization issued by the                 undertakings, businesses or parts of businesses is
         competent national authority on the basis of Directive                   to be interpreted as meaning that the contracts
         65/65/EEC, as amended, to one of its competitors for                     of employment and employment relationships existing
         a proprietary medicinal product bearing the same                         on the date of the transfer of an undertaking between
         name. The same applies where the authorization,                          the transferor and the workers employed in the
         although issued under another procedure laid down at                     undertaking transferred are automatically transferred
         national level, should have been issued on the basis of                  from the transferor to the transferee by the mere fact
         the Directive.
                                                                                  of the transfer of the undertaking, despite the contrary
                                                                                  intention of the transferor or transferee and despite the
                                                                                  latter's refusal to fulfil his obligations.
  (!) OJ No C 275 , 1 . 10 . 1994 .
  (2 ) Official Journal , English Special Edition 1965— 1966 , p. 20 .
  ( 3 ) OJ No L 15 , 17. 1 . 1987, p . 36 .
                                                                              2 . The transfer of the contracts of employment and
                                                                                   employment relationships pursuant to Article 3 (1 ) of
                                                                                   Directive 77/187/EEC necessarily takes place on the
                                                                                   date of the transfer of the undertaking and cannot be
 ---pagebreak--- 25 . 1 . 97             1 EN                 Official Journal of the European Communities                                     No C 26/5
       postponed to another date at the will of the transferor                          JUDGMENT OF THE COURT
       or transferee.                                                                          of 26 November 1996
                                                                        in Case C-68/95 ( reference for a preliminary ruling from
(!) OJ No C 386, 31 . 12. 1994 .                                        the Hessischer Verwaltungsgerichtshof): T. Port GmbH &c
( 2 ) OJ No L 61 , 5 . 3 . 1977, p . 26.                                Co .    KG     v.    Bundesanstalt     fur  Landwirtschaft  und
                                                                                                    Ernahrung ( 1 )
                                                                        (Bananas — Common organization of the markets —
                                                                        Import rules — Cases of hardship — Assessment of
                                                                                            validity — Interim measures)
                                                                                                     ( 97/C 26/08 )
                 JUDGMENT OF THE COURT                                                    (Language of the case: German)
                             (Fifth Chamber)
                         of 14 November 1996                               (Provisional translation; the definitive translation will be
                                                                                  published in the European Court Reports)
in Case C-333/94 P: Tetra Pak International SA v.
          Commission of the European Communities 0 )                    In Case C-68/95 : reference to the Court pursuant to
                                                                        Article 177 of the EC Treaty from the Hessischer
 (Appeal — Competition — Dominant position —                            Verwaltungsgerichtshof (Higher Administrative Court,
Definition of the product markets — Application of                      Hesse ), Germany, for a preliminary ruling in the
Article 86 of the Treaty to practices carried out by a                  proceedings pending before that court between T. Port
 dominant undertaking on a market distinct from the                     GmbH & Co . KG and Bundesanstalt fur Landwirtschaft
 dominated market — Tied sales — Predatory prices —                      und Ernahrung, supported by Federal Republic of
                                    Fine)
                                                                         Germany — on the interpretation of Articles 16 and 30 of
                               ( 971C 26/07)                             Council Regulation ( EEC ) No 404/93 of 13 February
                                                                         1993 on the common organization of the market in
                                                                         bananas (2 ), on the validity of Article 19 of that
                                                                         Regulation and on the interpretation of the EC Treaty,
                  (Language of the case: English)                        with particular regard to a national court's power to order
                                                                         interim measures until rules dealing with cases of hardship
                                                                         are adopted — the Court, composed of: G. C. Rodriguez
 In Case C-333/94 P: Tetra Pak International SA, whose                   Iglesias, President, G. F. Mancini, J. C. Moitinho de
 seat is in Pully, Switzerland, represented by Michel                    Almeida ( Rapporteur ), J. L. Murray and L. Sevón
 Waelbroeck and Alexandre Vandencasteele, of the Brussels                ( Presidents of Chambers ), C. N. Kakouris, P. J. G.
 Bar, and by Vivien Rose, Barrister, with an address for                 Kapteyn, C. Gulmann, D. A. O. Edward, J. -P. Puissochet,
 service in Luxembourg at the Chambers of Ernest Arendt,                 G. Hirsch, P. Jann and H. Ragnemalm, Judges; M. B.
  8—10 rue Mathias Hardt — appeal against the judgment                   Elmer, Advocate-General; H. von Holstein , Deputy
  of the Court of First Instance (Second Chamber ) of                    Registrar, for the Registrar, has given a judgment on
  6 October 1994 in Case T-83/91 Tetra Pak v. Commission                 26 November 1996, in which it has ruled :
  [1994] ECR 11-755, seeking to have that judgment set
  aside — the other party to the proceedings being: the                   1 . Article 16 (3) of Council Regulation (EEC) No 404/93
  Commission of the European Communities (Agent: Julian                       of 13 February 1993 on the common organization of
  Currall, assisted by Nicholas Forwood QC ) — the Court                      the market in bananas does not allow the Commission
  (Fifth Chamber), composed of: L. Sevón, President of the                    to lay down rules catering for cases of hardship arising
  First Chamber, acting for the President of the Fifth                        from the fact that importers of third-country bananas
  Chamber, C. Gulmann, D. A. O. Edward, J. -P. Puissochet                     or non-traditional ACP bananas meet difficulties
  and P. Jann ( Rapporteur ), Judges; D. Ruiz-Jarabo                          threatening their existence when an exceptionally low
  Colomer, Advocate-General; L. Hewlett, Administrator,                       quota was allocated to them on the basis of the
  for the Registrar, has given a judgment on 14 November                      reference years to be taken into consideration pursuant
   1996 , in which it:                                                        to Article 19 (2) of the Regulation.
                                                                              Article 30 of Regulation (EEC) No 404/93 authorizes
   1 . Dismisses the appeal.                                                  and, depending on the circumstances, requires the
                                                                               Commission to lay down rules catering for cases of
                                                                               hardship arising from the fact that importers of third-
   2 . Orders the appellant to pay the costs.                                  country bananas or non-traditional ACP bananas
                                                                               meet difficulties threatening their existence when an
                                                                               exceptionally low quota has been allocated to them on
   (') OJ No C 386 , 31 . 12 . 1994 .                                          the basis of the reference years to be taken into
                                                                               consideration pursuant to Article 19 (2) of that
                                                                               Regulation, where those difficulties are inherent in the
                                                                               transition from the national arrangements existing