CELEX: C1996/336/20
Language: en
Date: 1996-11-09 00:00:00
Title: JUDGMENT OF THE COURT (Fifth Chamber) of 11 July 1996 in Case C-25/95 (reference for a preliminary ruling from the Hessischer Verwaltungsgerichtshof): Siegfried Otte v. Federal Republic of Germany (Social security for migrant workers - Community rules - Matters covered - Benefit paid to workers in the coal industry who have passed a specified age-limit and have been laid off as a result of closure of the undertaking employing them or rationalization measures (adaptation allowance) - Benefit paid by way of subsidy - Method of calculating benefits - Taking into account of a pension paid under the legislation of another Member State - Conditions and limits)

9 . 11 . 96            EN                  Official Journal of the European Communities                                No C 336/ 11
               JUDGMENT OF THE COURT                                      the packaging is not indirectly affected, for example, by
                        of 11 July 1996                                   the fact that the external or inner packaging of the
                                                                          repackaged product or new user instructions or
in Case C-232/94 ( reference for a preliminary ruling by                  information omits certain important information or
the Oberlandesgericht Koln ): MPA Pharma GmbH v.                          gives inaccurate information,
               Rhône-Poulenc Pharma GmbH (M
(Repackaging oftrade-markedproducts — Article 36 ofthe                — the new packaging clearly states who repackaged the
                           EC Treaty)                                     product and the name of the manufacturer in print such
                         ( 96/C 336/ 19 )                                 that a person with normal eyesight, exercising a normal
                                                                          degree of attentiveness, would be in a position to
                (Language of the case: German)                            understand; however, it is not necessary to indicate that
                                                                          the repackaging was carried out without the
                                                                          authorization of the trade-mark owner,
(Provisional translation; the definitive translation will be
          published in the European Court Reports)                    — the presentation ofthe repackaged product is not such as
                                                                          to be liable to damage the reputation of the trade mark
In Case C-232/94 , reference to the Court pursuant to                     and of its owner; thus, the packaging must not be
Article 177 of the EC Treaty by the Oberlandesgericht Koln                defective, of poor quality, or untidy; and
( Higher Regional Court, Cologne, Germany ) for a
preliminary ruling in the proceedings pending before that             — the importer gives notice to the trade-mark owner before
court between MPA Pharma GmbH and Rhone-Poulenc                           the repackaged product is put on sale, and, on demand,
Pharma GmbH on the interpretation of Article 36 of the EC                 supplies him with a specimen of the repackaged
Treaty in relation to trade marks, the Court, composed of:                product.
G. C. Rodriguez Iglesias, President, C. N. Kakouris, J. -P.
Puissochet and G. Hirsch ( Presidents of Chambers ), G. F.            (') OJ No C 275 , 1 . 10 . 1994 .
Mancini , J. C. Moitinho de Almeida , C. Gulmann
( Rapporteur ), P. Jann and H. Ragnemalm, Judges;
Advocate-General : F. G. Jacobs, for the Registrar: H. von
Holstein, Deputy Registrar, L. Hewlett, Administrator, has
given a judgment on 11 July 1996 in which it rules :
                                                                                    JUDGMENT OF THE COURT
Article 36 of the EC Treaty must be interpreted as meaning                                    ( Fifth Chamber)
that a trade-mark owner may rely on hi$ rights as owner to
prevent an importer from marketing a pharmaceutical                                           of 11 July 1996
product which was put on the market in another Member                 in Case C-25/95 ( reference for a preliminary ruling from the
State by the owner or with his consent, where that importer           Hessischer Verwaltungsgerichtshof): Siegfried Otte v.
has repackaged the product and reaffixed the trade mark                               Federal Republic of Germany
thereto, unless:
                                                                      (Social security for migrant workers — Community rules —
— it is established that reliance on trade mark rights by the         Matters covered — Benefit paid to workers in the coal
    owner in order to oppose the marketing of repackaged              industry who have passed a specified age-limit and have
    products under that trade mark would contribute to the            been laid off as a result of closure of the undertaking
    artificial partitioning of the markets between Member             employing them or rationalization measures (adaptation
    States; such is the case, in particular, where the owner          allowance) — Benefit paid by way ofsubsidy — Method of
    has put an identical pharmaceutical product on the                calculating benefits — Taking into account of a pension
    market in several Member States in various forms of              paid under the legislation of another Member State —
    packaging, and the repackaging carried out by the                                     Conditions and limits)
    importer is necessary in order to market the product in                                     ( 96/C 336/20 )
    the Member State of importation, and also carried out in
    such conditions that the original condition of the                               (Language of the case: German)
    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             (Provisional translation; the definitive translation will be
    markets between Member States,                                            published in the European Court Reports)
— it is shown that the repackaging cannot affect the                  In Case C-25/95 : reference to the Court pursuant to
    original condition of the product inside the packaging;           Article 177 of the EC Treaty from the Hessischer
    such is the case, in particular, where the importer has           Verwaltungsgerichtshof ( Germany ) for a preliminary ruling
    merely carried out operations involving no risk of the            in the proceedings pending before that court between
    product being affected, such as, for example, the                 Siegfried Otte and Federal Republic of Germany — on the
    removal of blister packs from their original external             interpretation of Articles 4(1 ) and ( 2 ), 12 ( 2 ) and 46 of
    packaging and their insertion into new external                   Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on
    packaging, or the addition to the packaging of new user           the application of social security schemes to employed
    instructions or information; it is for the national court to      persons, to self-employed persons and to members of their
    verify that the original condition of the product inside          families moving within the Community, as amended and
 ---pagebreak--- No C 336/ 12            EN                 Official Journal of the European Communities                                       9 . 11 . 96
updated by Council Regulation ( EEC ) No 2001 /83 of 2 June           Murray, P. Jann and M. Wathelet, Judges; Advocate
1983 ( 2 ), and Article 7 of Council Regulation ( EEC )               General : N. Fennelly; L. Hewlett, Administrator, acting as
No 574/72 of 21 March 1972 laying down the procedure for              Registrar, gave a judgment on 11 July 1996 , the operative
implementing Regulation ( EEC ) No 1408/71 , as amended               part of which is as follows :
and updated by Regulation ( EEC ) No 2001 /83 ( 3 ) — the
Court ( Fifth Chamber ), composed of D. A. O. Edward ,                1 . Article 4 (1 ) or (2) of Council Directive 79/409/EEC of
President of the Chamber, J. -P. Puissochet, J. C. Moitinho                  2 April 1979 on the conservation of wild birds is to be
de Almeida ( Rapporteur ), C. Gulmann and P. Jann , Judges,                  interpreted as meaning that a Member State is not
Advocate-General : D. Ruiz-Jarabo Colomer, Registrar: H.                     authorized to take account of the economic
von Holstein, Deputy Registrar, gave a judgment on 11 July                   requirements mentioned in Article 2 thereof when
1996 , the operative part of which is as follows :                           designating a Special Protection Area and defining its
                                                                             boundaries.
Article 4 ( I ) and (2) of Council Regulation (EEC)
No 1408/71 of 14 June 1971 on the application of social               2 . Article 4 (1 ) or (2) of Directive 79/409/EEC is to be
security schemes to employed persons, to self-employed                       interpreted as meaning that a Member State may not,
persons and to members of their families moving within the                   when designating a Special Protection Area and defining
Community, as amended and updated by Council                                 is boundaries, take account ofeconomic requirements as
Regulation (EEC) No 2001 /83 of 2 june 1983 , must be                        constituting a general interest superior to that
interpreted as not applying to benefits which, like those                    represented by the ecological objective of that
provided for by the 1971 and 1988 guidelines on the                          directive.
granting of the adaptation allowance to employees in the
coal-mining industry, are granted by a Member State in the            3 . Article 4 (1 ) or (2) of Directive 79/409/EEC is to be
form of non-compulsory subsidies to workers from the time                    interpreted as meaning that a Member State may not,
at which they are laid off to the time at which they attain                  when designating a Special Protection Area and defining
retirement age.                                                              its boundaries, take account of economic requirements
                                                                             which may constitute imperative reasons of overriding
(') OJ No C 87, 8 . 4.1995 .                                                 public interest of the kind referred to in Article 6 (4) of
( 2 ) OJ No L 230, 1983 , p . 6 .                                            Directive 92/43/EEC of 21 May 1992 on the
(■') OJ No L 230, 1983 , p . 86 .                                            conservation of the natural habitats of wild fauna and
                                                                             flora.
                                                                      (') OJ No C 101 , 22 . 4 . 1995 .
                                                                      ( 2 ) OJ No L 103 , 1979 , p . 1 .
                  JUDGMENT OF THE COURT
                          of 11 July 1996
in Case C-44/95 ( reference for a preliminary ruling from the
House of Lords ): Regina v. Secretary of State for the                                  JUDGMENT OF THE COURT
Environment ex parte : Royal Society for the Protection of                                       ( Fifth Chamber)
       Birds supported by Port of Sheerness Limited ( J )
                                                                                                  of 11 July 1996
 (Directive 79/409/EEC on the conservation of wild birds —
Directive 92/43/EEC on the conservation of the natural                in Case C-303/95 : Commission of the European Commu­
habitats of wild fauna and flora — Delimitation of Special                                 nities v. Italian Republic (')
Protection Areas — Discretion enjoyed by the Member                        (Failure to fulfil obligations — Directive 91/157/EEC)
States — Economic and social considerations — Lappel                                               ( 96/C 336/22 )
                                Bank)
                           ( 96/C 336/21 )                                               (Language of the case: Italian)
                   (Language of the case: English)                    (Provisional translation; the definitive translation will be
                                                                                  published in the European Court Reports)
In Case C-44/95 : reference to the Court pursuant to
Article 177 of the EC Treaty by the House of Lords for a              In Case C-303/95 : Commission of the European
preliminary ruling in the proceedings pending before that             Communities ( Agents: Laura Pignataro and Maria
court in the case of Regina v. Secretary of State for the             Kontou-Durande ) v. Italian Republic ( Agents : Umberto
Environment, ex parte: Royal Society for the Protection of            Leanza , assisted by Oscar Fiumara ) — application for a
 Birds supported by Port of Sheerness Limited, on the                 declaration by the Court that, by not adopting the laws,
 interpretation of Articles 2 and 4 of Council Directive              regulations and administrative provisions necessary to
 79/409/EEC of 2 April 1979 on the conservation of wild               comply with Council Directive 91 / 157/EEC of 18 March
 birds ( 2 ), the Court composed of: G. C. Rodriguez Iglesias,         1991 on batteries and accumulators containing certain
President, D. A. O. Edward, J. -P. Puissochet, G. Hirsch              dangerous substances ( 2 ), or at least by failing to inform the
 ( Presidents of Chambers ), G. F. Mancini, J. C. Moitinho de         Commission of those provisions, the Italian Republic has
Almeida , P. J. G. Kaptevn, C. Gulmann ( Rapporteur ), J. L.          failed to fulfil its obligations under that Directive — the