CELEX: C2000/034/27
Language: en
Date: 2000-02-05 00:00:00
Title: Case C-444/99: Action brought on 22 November 1999 by the Commission of the European Communities against the Italian Republic

C 34/14                EN                   Official Journal of the European Communities                                      5.2.2000
2. If Question 1 is answered in the negative:                          Action brought on 22 November 1999 by the Com-
                                                                       mission of the European Communities against the Italian
     A Member State has implemented Council Directive                                              Republic
     80/987/EEC and designated the State as being liable for
     payment of an employee’s claims against an employer who
     has been declared insolvent. In such a case, is the effect of                             (Case C-444/99)
     the Directive such that an employee may enforce a right to
     a wage guarantee without regard to a national provision
     which excludes certain groups of employees from the right                                  (2000/C 34/27)
     to a wage guarantee but which is not consistent with the
     exception to the Directive which is applicable to the
     Member State?                                                     An action against the Italian Republic was brought before the
                                                                       Court of Justice on 22 November 1999 by the Commission of
(1) OJ 1980 L 283, p. 23.                                              the European Communities, represented by Marie Wolfcarius
                                                                       and Stefania Dragone, of its Legal Service, acting as Agent,
                                                                       with an address for service in Luxembourg at the office of
                                                                       Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Reference for a preliminary ruling from the Oberlandes-                The applicant claims that the Court should:
gericht Wien by order of that court of 5 November 1999
in the case of Merck, Sharp & Dohme GmbH v Paranova                    1. Declare that, by leaving in force a system of authorization
               Pharmazeutika Handels GesmbH                                and a quota system for combined transport operations, the
                                                                           Italian Republic has failed to fulfil its obligations under
                         (Case C-443/99)                                   Council Directive 92/106/EEC (1) of 7 December 1992 on
                                                                           the establishment of common rules for certain types of
                          (2000/C 34/26)                                   combined transport of goods between Member States, in
                                                                           particular Article 2 thereof;
Reference has been made to the Court of Justice of the
European Communities by an order of the Oberlandesgericht
Wien (Higher Regional Court, Vienna) of 5 November 1999,               2. Order the Italian Republic to pay the costs.
which was received at the Court Registry on 22 November
1999, for a preliminary ruling in the case of Merck, Sharp &
Dohme GmbH v Paranova Pharmazeutika Handels GesmbH
on the following question:                                             Contentions and principal arguments adduced in support
Must Article 7(2) of the First Council Directive of 21 December
1988 to approximate the laws of the Member States relating             Article 2 of Directive 92/106/EEC requires the Member States,
to trade marks (89/104/EEC) (1) be interpreted as meaning              by 1 July 1993, to liberalise the combined transport operations
that a trade mark owner may oppose the marketing of a                  referred to in Article 1 from all quota systems and systems of
pharmaceutical product put on the market under his trade               authorization.
mark where the importer has repackaged it and reaffixed the
trade mark and has complied with the other requirements set
forth in the Court of Justice judgment in Joined Cases                 The Italian Republic has infringed that article because, despite
C-427/93, C-429/93 and C-436/93 (2) (the product inside the            having changed the system of special authorisations for
packaging must not be affected, the manufacturer and origin            combined transport operations by converting it into a system
must be clearly indicated, the reputation of the trade mark or         of general authorisations, it has nevertheless kept in force a
its owner must not be damaged as a consequence of poor                 system of authorisations for combined transport operations.
packaging, and the trade mark owner must be given notice
before the repackaged pharmaceutical product is put on sale),
but the marketability of the product would be jeopardised              Moreover, by not issuing any general authorisation in accor-
without such repackaging solely because a significant pro-             dance with Article 1 of the Decree of 27 June 1992 in order
portion of the consumers of pharmaceutical products in the             to enable carriers to undertake combined transport operations,
State of importation is suspicious of pharmaceutical products          the Italian Republic has infringed Article 2 of the directive in
which have clearly been produced for the market of another             so far as it has kept in force a quota system for combined
State (in which a different language is spoken) and are inside         transport operations.
packagings which have been adapted merely by means of
self-stick labels to the domestic provisions governing the sale
of pharmaceutical products?
                                                                       (1) OJ 1992 L 368, p. 38.
(1) OJ L 40 of 11.2.1989, p. 1.
(2) [1996] ECR I-3457.