CELEX: C1995/248/25
Language: en
Date: 1995-09-23 00:00:00
Title: Reference for a preliminary ruling from the Bundesverwaltungsgericht, by order of that court of 30 March 1995, in the case of the Bundesanstalt für Landwirtschaft und Ernährung v. Deutsches Milch-Kontor GmbH (Case C-272/95)

No C 248/12           EN                Official Journal of the European Communities                                        23 . 9 . 95
    stating which of such dates is applicable with regard to                     and continue to supply sufficient quantities to
    such acts;                                                                   satisfy the needs of domestic patients; and/or
                                                                           (c ) that country's legislation grants to its authorities,
2.  that the provisions and effect of Article 209 of the                         and its authorities exercise, the right to fix the
    Portuguese Treaty of Accession of the European                               sale price of the Pharmaceutical in that country
    Communities will continue to apply to                                        and legislation prohibits the sale of the
    pharmaceutical products                                                      Pharmaceutical at any other price; and/or
2.1 imported from Portugal; or                                             ( d ) the price of the Pharmaceutical in that country
                                                                                 has been fixed by its authorities at a level at which
2.2 first marketed in Portugal;                                                  substantial exports of the Pharmaceutical from
    until
                                                                                 such country to the Member State are anticipated
                                                                                 with the result that the economic value of the
    ( a ) 1 January 1995 ; or                                                    Patent would be significantly eroded and research
                                                                                 and development for future pharmaceuticals
    ( b ) 31 December 1995 ; or                                                  planned by the Proprietor significantly
                                                                                 undermined, contrary to the rationale underlying
    ( c ) 1 June 1998 ; or                                                       the recent introduction by the EC Council of the
    ( d ) 31 December 1998 ; or
                                                                                 Supplementary Protection Certificate .
    ( e ) the end of the third year after the particular
            pharmaceutical, protected by a product patent in
            one or more Member State(s ) of the European
            Union and which was previously unpatentable in
            Portugal , has become patentable in Portugal
                                                                   Reference for a preliminary ruling from the Bundesverwal­
    stating which of such dates is applicable with regard to       tungsgericht, by order of that court of 30 March 1995 , in the
    such acts;                                                     case      of   the   Bundesanstalt    fur Landwirtschaft         und
                                                                            Ernahrung v. Deutsches Milch-Kontor GmbH
3.  after the expiration of Article 47 ( and/or Article 209 ,                                ( Case C-2 72/95 )
     as appropriate ), in a case where :
                                                                                               ( 95/C 248/25 )
3.1  an undertaking is the proprietor (the 'Proprietor') of a
     patent ( the 'Patent') in one or more Member States of        Reference has been made to the Court of Justice of the
     the European Communities ( the 'Member State') for a          European Communities by an order of the Bundesverwal­
     pharmaceutical product ( the 'Pharmaceutical');               tungsgericht ( Federal Administrative Court) of 30 March
                                                                   1995 , which was received at the Court Registry on
3.2  the Pharmaceutical was first put on the market in a           11 August 1995 , for a preliminary ruling in the case of the
     country by the Proprietor after that country's                Bundesanstalt fur Landwirtschaft und Ernahrung v.
     accession to the EC but at a time when the                    Deutsches Milch-Kontor GmbH on the following
     Pharmaceutical could not be protected by a product            questions :
     patent in that country;
                                                                    1 . is the first subparagraph of Article 2 ( 4 ) of Regulation
3.3  a third party imports the Pharmaceutical from that                 ( EEC ) No 1624/76 ( ] ), as amended by Article 1 of
     country into the Member State;                                     Regulation (EEC) No 1726/79 (2), to be interpreted as
                                                                        meaning that, where skimmed-milk powder produced in
3.4  and the patent legislation in the Member State granted             Germany is exported by lorry to Italy for use in the
     the proprietor of the Patent the right to oppose by legal          manufacture of compound feedingstuffs, the competent
     action the importation of the Pharmaceutical from                  authority is required to take a sample from each lorry
     that country                                                       load and have it analyzed in order to be able to issue the
                                                                        certificate referred to in the provision ?
     do the rules set forth in the EC Treaty concerning the
     free movement of goods prevent the Proprietor from             2 . if question 1 should be answered in the negative, what
     availing himself of the right referred to in paragraph             criteria are to be drawn from Article 2 ( 1 ) ( a ) of
     3.4 above, in particular if:                                       Regulation ( EEC ) No 1624/76, as amended by Article 1
      ( a ) the Proprietor had and continues to have a legal            of Regulation ( EEC ) No 1726/79 in conjunction with
                                                                        Article 10 of Regulation ( EEC ) No 1725/79 ( 3 ) for the
            and/or ethical obligation to market and to
            continue marketing the Pharmaceutical in that               purpose of determining the frequency with which
                                                                        samples must and may be taken in the case of
            country; and/or
                                                                         skimmed-milk powder exported by lorry to Italy ?
      ( b ) that country's and/or EC legislation effectively
            requires that, once the Pharmaceutical is put on        3 . is it compatible with the prohibition of charges having
            the market in that country, the Proprietor supply            an effect equivalent to customs duties ( Articles 9 , 12 and
 ---pagebreak--- 23 . 9 . 95             EN                   Official Journal of the European Communities                               No C 248/ 13
      16 of the EEC Treaty ), the prohibition of discrimination         Kingdom of Spain v. Commission of the European
      ( Article 95 of the EEC Treaty) and other provisions of           Communities .
      Community law to make the exporter bear the full costs
      under national law of regular or occasional analyses ?            (') OJ No C 103 , 11 . 4 . 1994 .
(>) OJ No L 180 , 6 . 7 . 1976 , p . 9 .
(2 ) OJ No L 199 , 7. 8 . 1979 , p . 10 .
( 3 ) OJ No L 199 , 7. 8 . 1979 , p . 1 .                                        Removal from the register of Case C-95/94 ( J )
                                                                                                     ( 95/C 248/29 )
                                                                        By order of 1 1 July 1995 the President of the Sixth Chamber
                                                                        of the Court of Justice of the European Communities
        Removal from the register of Case C-l 80/94 ( )                 ordered the removal from the register of Case C-95/94 :
                            ( 95/C 248 /26 )                            Commission of the European Communities v. Kingdom of
                                                                        Spain.
By order of 12 June 1995 the President of the Sixth Chamber
of the Court of Justice of the European Communities                     (') OJ No C 161 , 11 . 6 . 1994 .
ordered the removal from the register of Case C-l 80/94 :
Commission of the European Communities v. Hellenic
Republic .
                                                                                  Removal from the register of Case C-471/93
 (') OJ No C 233 , 20 . 8 . 1994 .                                                              and Case C-47/94 (M
                                                                                                     ( 95/C 248 /30 )
                                                                        By order of 1 4 July 1995 the President of the Court of Justice
                                                                        of the European Communities ordered the removal from the
         Removal from the register of Case C-67/92 (*)                  register of Case C-471 /93 and Case C-47/94 : United
                            ( 95/C 248/27 )                             Kingdom of Great Britain and Northern Ireland v.
                                                                        Commission of the European Communities, supported by
 By order of 30 June 1995 the President of the Court of                 the Kingdom of Spain, the Italian Republic and the Hellenic
Justice of the European Communities ordered the removal                 Republic .
 from the register of Case C-67/92 ( reference for a
 preliminary ruling from the Tribunal de Grande Instance                 (') OJ No C 43 , 12 . 2 . 1994 and
 de Rennes): Societe l'Hexagone v. Societe des Auteurs,                        OJ No C 90 , 26 . 3 . 1994 .
 Compositeurs et Editeurs de Musique ( SACEM ).
 O OJ No C 86 , 7. 4 . 1992 .
                                                                                Removal from the register of Case C-154/94 ( )
                                                                                                       95/C 248/31
                                                                         By order of 14 July 1995 the President of the Court of Justice
         Removal from the register of Case C-53/94 ( )                   of the European Communities ordered the removal from the
                             ( 95/C 248/28 )                             register of Case C-154/94 ( reference for a preliminary
                                                                         ruling from the Sozialgericht Berlin ): Bahar Kockaya v.
  By order of 1 1 July 1 995 the President of the Fifth Chamber          Bundesanstalt fiir Arbeit.
  of the Court of Justice of the European Communities
  ordered the removal from the register of Case C-53/94 :                t 1 ) OJ No C 218 , 6 . 8 . 1994 .