CELEX: C2000/006/35
Language: en
Date: 2000-01-08 00:00:00
Title: Case C-424/99: Action brought on 29 October 1999 by the Commission of the European Communities against the Republic of Austria

8.1.2000               EN                    Official Journal of the European Communities                                         C 6/19
(B) Where:                                                                   (ii) offending against      the   provisions  of   Directive
                                                                                  76/768/EEC (2).
    (i) a proprietor has consented to or allowed goods to be
                                                                        (1) First Council Directive 89/104/EEC of 21 December 1988 to
         placed in the hands of a third party in circumstances
                                                                            approximate the laws of the Member States relating to trade
         where the latter’s rights to further market the goods              marks (OJ L 40, 11.2.1989, p. 1).
         are determined by the law of the contract of purchase          (2) Council Directive 76/768/EEC of 27 July 1976 on the approxi-
         under which that party acquired the goods, and                     mation of the laws of the Member States relating to cosmetic
                                                                            products (OJ L 262, 27.9.1976, p. 169).
    (ii) said law allows the vendor to impose restrictions on
         the further marketing or use of the goods by the
         purchaser but also provides that, absent the imposition
         by or on behalf of the proprietor of effective restrictions
         on the purchaser’s right to further market the goods,
         the third party acquires a right to market the goods in
         any country, including the Community,
                                                                        Action brought on 29 October 1999 by the Commission
                                                                        of the European Communities against the Republic of
                                                                                                      Austria
    then, if restrictions effective according to that law to limit
    the third party’s rights to market the goods have not been
    imposed, is the Directive to be interpreted so as to treat                                   (Case C-424/99)
    the proprietor as having consented to the right of the
    third party acquired thereby to market the goods in the                                        (2000/C 6/35)
    Community.
                                                                        An action against the Republic of Austria was brought
(C) If the answer to question (B) is in the affirmative, is it for      before the Court of Justice of the European Communities
    the national courts to determine whether, in all the                on 29 October 1999 by the Commission of the European
    circumstances, effective restrictions were imposed on the           Communities, represented by Josef Christian Schieferer, of its
    third party.                                                        Legal Service, acting as Agent, with an address for service in
                                                                        Luxembourg at the office of Carlos Gómez de la Cruz, also of
                                                                        its Legal Service, Wagner Centre C 254, Kirchberg.
(D) Is Article 7(2) of the Directive to be interpreted. in such a
    way, that legitimate reasons for the proprietor to oppose           The applicant claims that the Court should:
    further commercialisation of his goods include any actions
    by a third party which affect to a substantial extent the           1. Declare that, by failing to adopt the laws, regulations and
    value, allure or image of the trade mark or the goods to                 administrative provisions necessary to comply in full with
    which it is applied.                                                     Council Directive 89/105/EEC of 21 December 1988
                                                                             relating to the transparency of measures regulating the
                                                                             pricing of medicinal products for human use and their
(E) Is Article 7(2) of the Directive to be interpreted in such a             inclusion in the scope of national health insurance sys-
    way that legitimate reasons for the proprietor to oppose                 tems (1), and by failing to inform the Commission thereof,
    further commercialisation of his goods include the removal               the Republic of Austria has failed to fulfil its obligations
    or obliteration by third parties (in whole or in part) of any            under that directive;
    markings on the goods where such removal or obliteration
    is not likely to cause any serious or substantial damage to         2. Order the Republic of Austria to pay the costs of the
    the reputation of the trade mark or the goods bearing the                proceedings.
    mark.
                                                                        Pleas in law and main arguments
(F) Is Article 7(2) of the Directive to be interpreted in such a
    way that legitimate reasons for the proprietor to oppose            Contrary to the view taken by Austria, the Commission
    further commercialisation of his goods include the removal          submits that the bodies responsible for operating the Austrian
    or obliteration by third parties (in whole or in part) of           health service (Hauptverband der Sozialversicherungsträger)
    batch code numbers on the goods where such removal or               (Principal Association of Social Insurance Institutions) must be
    obliteration results in the goods in question                       treated as being State authorities for the purposes of the
                                                                        directive and that the inventory of medicines published by the
                                                                        abovementioned Hauptverband pursuant to Paragraph 31(3),
    (i) offending against any part of the criminal code of a            no 12, in conjunction with Paragraph 133(2), of the Allge-
         Member State (other than a part concerned with trade           meines Sozialversicherungsgesetz (General Law on Social
         marks) or                                                      Security Insurance) (‘ASVG’) is a positive list within the
 ---pagebreak--- C 6/20               EN                     Official Journal of the European Communities                                   8.1.2000
meaning of Article 6 of Directive 89/105/EEC. For reimburse-           — to ensure compliance with the time-limit laid down in
ment in respect of a medicinal product not included in the                 Article 6 for the decision as to inclusion on the positive
inventory of medicines, approval of a head doctor or con-                  list;
trolling doctor is required under Paragraph 31(3), no 12, of
the ASVG. The statutorily defined criteria (suitability, necessity)    — to provide an effective legal remedy against negative
governing the granting of approval by a head doctor or                     decisions;
controlling doctor are so imprecise that no reliable determi-
nation as to whether a medicinal product is reimbursable can           — to comply with the obligation to state reasons for negative
be made directly on the basis of the Law.                                  decisions.
The Austrian legislature has failed to adopt the implementing
measures required                                                      (1) OJ 1989 L 40 of 11.2.1989, p. 8.