CELEX: C1995/268/29
Language: en
Date: 1995-10-14 00:00:00
Title: Reference for a preliminary ruling from the Oberlandesgericht München, by order of that court of 5 May 1995, in the case of Benincasa v. Dentalkit srl (Case C-269/95)

No C 268/ 14           EN                   Official Journal of the European Communities                                      14 . 10 . 95
2.2 . the Pharmaceutical was first put on the market in a              preliminary ruling in the case of Benincasa v . Dentalkit srl
      country by the Proprietor after that country's accession         on the following questions :
      to the EC but at a time when the Pharmaceutical could
      not be protected by a product patent in the                      ( 1 ) is a plaintiff to be regarded as a consumer within the
      country ;
                                                                              meaning of the first paragraph of Article 13 and the
                                                                              first paragraph of Article 14 of the Convention on
2.3 a third party imports the Pharmaceutical from that                        jurisdiction and the enforcement of judgements in civil
      country into the Member State;                                          and commercial matters ('the Convention ') even if his
                                                                              action relates to a contract which he concluded not for
2.4 and the patent legislation in the Member State granted                    the purpose of a trade which he was already pursuing
      the proprietor of the Patent the right to oppose by legal               but a trade to be taken up only at a future date ( here : a
      action the importation of the Pharmaceutical from that                  franchising agreement concluded for the purpose of
      country,                                                                setting up a business )?
                                                                       (2 ) If question 1 is to be answered in the affirmative :
do the rules set forth in the EC Treaty concerning the free
movement of goods prevent the Proprietor from availing                        does point 1 of the first paragraph of Article 13 of the
himself of the right referred to in paragraph 2.4 above, in                   Convention ( contract for the sale of goods on
particular if:                                                                instalment credit terms) cover a franchising agreement
                                                                              which obliges the plaintiff to buy from the other party
      ( a ) the Proprietor had and continues to have a legal                  to the agreement, over a period of several ( three ) years,
            and/or ethical obligation to market and to                        the articles and goods required to equip and operate a
            continue marketing the Pharmaceutical in that                     business (without instalment credit terms having been
            country; and/or                                                   agreed ) and to pay an initial fee and, as from the second
                                                                              year of the business , a licence fee of 3 % of
      ( b ) that country's and/or EC legislation effectively                  turnover ?
            requires that, once the Pharmaceutical is put on
                                                                       ( 3 ) Does the court of a Member State specified in an
            the market in that country, the Proprietor supplies
                                                                              agreement conferring jurisdiction have exclusive
            and continues to supply sufficient quantities to
                                                                              jurisdiction pursuant to the first sentence of the first
            satisfy the needs of domestic patients; and/or
                                                                              paragraph of Article 17 of the Convention even when
                                                                              an action is inter alia for a declaration of the invalidity
      ( c ) that country's legislation grants to its authorities,
                                                                              of a franchising agreement in which the agreement
            and its authorities exercise, the right to fix the sale
                                                                              conferring jurisdiction is itself contained, the following
            price of the Pharmaceutical in that country and
            legislation prohibits the sale of the Pharmaceutical              wording ( English translation ) 'the courts in Florence
                                                                              have jurisdiction over any dispute concerning the
            at any other price; and/or
                                                                              interpretation , performance or other aspect of this
      ( d ) the price of the Pharmaceutical in that country has               contract' being separately accepted with a reference to
                                                                              Articles 1341 and 1342 of the Italian Codice Civile ?
            been fixed by its authorities at a level at which
            substantial exports of the Pharmaceutical from
            such country to the Member State are anticipated
            with the result that the economic value of the
            Patent would be significantly eroded and research          Appeal brought on 9 August 1995 by C. Kik against the
            and development for future pharmaceuticals                 order made on 19 June 1995 by the First Chamber of the
            planned by the Proprietor significantly                    Court of First Instance of the European Communities in
            underminded, contrary to the rationale                     Case T-107/94 between C. Kik and the Council of the
            underlying the recent introduction by the EC               European Union and the Commission of the European
            Council     of     the   Supplementary     Protection            Communities, supported by the Kingdom of Spain
            Certificate .
                                                                                               ( Case C-270/95 P )
                                                                                                  ( 95/C 268/30 )
                                                                       An appeal against the order made on 19 June 1995 by the
                                                                       Court of First Instance of the European Communities in
                                                                       Case T-107/94 between C. Kik and the Council of the
Reference for a preliminary ruling from the                            European Union and the Commission of the European
Oberlandesgericht Miinchen, by order of that court of                  Communities, supported by the Kingdom of Spain , was
  5 May 1995 , in the case of Benincasa v. Dentalkit srl               brought before the Court of Justice of the European
                          ( Case C-269/95 )                            Communities on 9 August 1995 by C. Kik, represented by
                            ( 95/C 268/29 )                            G. L. Kooy, of the Hague Bar, with an address for service in
                                                                       Luxembourg at the Chambers of N. Decker, 16 Avenue
                                                                       Marie-Thérèse .
Reference has been made to the Court of Justice of the
European Communities by an order of the                                The appellant claims that the Court should :
Oberlandesgericht Miinchen ( Higher Regional Court,
Munich ), Eighth Chamber, of 5 May 1995 , which was                    — set aside the decision of the Court of First Instance of
received at the Court Registry on 9 August 1995 , for a                      19 June 1995 dismissing as inadmissible the applicant's