CELEX: C1997/040/06
Language: en
Date: 1997-02-08 00:00:00
Title: JUDGMENT OF THE COURT of 5 December 1996 in Joined Cases C-267/95 and C-268/95 (references for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division, Patents Court): Merck & Co. Inc. and Others v. Primecrown Ltd and Others and Beecham Group plc v. Europharm of Worthing Ltd (Act of Accession of Spain and Portugal - Interpretation of Articles 47 and 209 - End of transitional period - Articles 30 and 36 of the EC Treaty - Parallel imports of unpatentable pharmaceuticals)

8 . 2 . 97             EN                  Official Journal of the European Communities                                   No C 40 / 3
expenditure for 1991 of the European Agricultural                     other document serving as an invoice that fulfils the
Guidance and Guarantee Fund ( EAGGF ), Guarantee                      criteria determined by the Member States themselves, and
Section ( OJ No L 35,2, 31 . 12 . 1994, p. 82 ) — the Court           confer on them the power to require production of the
( Sixth Chamber ), composed of: J. L. Murray, President of            original invoice in order to establish the right to deduct
the Fourth Chamber, acting for the President of the Sixth             input tax, as well as the power, where a taxable person no
Chamber, P. J. G. Kapteyn ( Rapporteur ), G. Hirsch , H.              longer holds the original, to admit other evidence that the
Ragnemalm and R. Schintgen, Judges; D. Ruiz-Jarabo                    transaction in respect of which the deduction is claimed
Colomer, Advocate-General ; Fl . von Holstein , Deputy                actually took place.
Registrar, for the Registrar, has given a judgment on
5 December 1996 , in which it:                                        O OJ No C 137, 3 . 6 . 1995 .
1 . dismisses the action ;
2 . orders the Italian Republic to pay the costs.
(') OJ No C 137, 3 . 6 . 1995 .                                                     JUDGMENT OF THE COURT
                                                                                           of 5 December 1996
                                                                      in Joined Cases C-267/95 and C-268/95 ( references for a
                                                                      preliminary ruling from the High Court of Justice of
                                                                      England and Wales, Chancery Division, Patents Court ):
                                                                      Merck & Co . Inc. and Others v. Primecrown Ltd and
               JUDGMENT OF THE COURT
                                                                      Others and Beecham Group pic v. Europharm of Worthing
                      of 5 December 1996                                                            Ltd (')
in Case C-85/95 ( reference for a preliminary ruling from             (Act of Accession of Spain and Portugal — Interpretation
the Bundesfinanzhof): John Reisdorf v. Finanzamt Köln­                of Articles 47 and 209 — End of transitional period —
                              West (')                                Articles 30 and 36 of the EC Treaty — Parallel imports of
 (Value added tax — Interpretation of Article 18 (1 ) (a) of                           unpatentable pharmaceuticals)
the Sixth Council Directive 77/388/EEC — Deduction of
                                                                                                ( 97/C 40/06 )
input tax paid — Obligation of the taxable person —
                   Possession of an invoice)
                           ( 97/C 40/05 )
                                                                                      (Language of the case: English)
                (Language of the case: German)                        In Joined Cases C-267/95 and C-268/95 : references to the
                                                                      Court under Article 177 of the EC Treaty by the High
                                                                      Court of Justice of England and Wales, Chancery Division,
   (Provisional translation; the definitive translation will be       Patents Court, for a preliminary ruling in the proceedings
           published in the European Court Reports)                   pending before that court between Merck & Co . Inc .,
                                                                      Merck Sharp & Dohme Ltd, Merck Sharp & Dohme
 In Case C-85/95 : reference to the Court under Article 177           International Services BV and Primecrown Ltd, Ketan
 of the EC Treaty from the Bundesfinanzhof for a                      Himatlal Mehta , Bharat Himatlal Mehta, Necessity
 preliminary ruling in the proceedings pending before that             Supplies Ltd and between Beecham Group and Europharm
 court between John Reisdorf and Finanzamt Köln-West —                of Worthing Ltd — on the interpretation of Article 47 and
 on the interpretation of Article 18 ( 1 ) ( a ) of the Sixth         Article 209 of the Act concerning the Conditions of
 Council Directive 77/388/EEC of 17 May 1977 on the                   Accession of the Kingdom of Spain and the Portuguese
 harmonization of the laws of the Member States relating               Republic and the adjustments to the Treaties ( OJ No
 to turnover taxes — Common system of value added tax :                L 302, 15 . 11 . 1985 , p. 23 ), and of Articles 30 and 36 of
 uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977,            the EC Treaty, the Court composed of : G. C. Rodriguez
 p. 1 ) — the Court ( Fifth Chamber ), composed of: J. C.              Iglesias, President, G. F. Mancini , J. L. Murray and L.
 Moitinho de Almeida ( Rapporteur ), President of the                  Sevón , Presidents of Chambers, C. N. Kakouris, C.
 Chamber, C. Gulmann, D. A. O. Edward, J. -P. Puissochet               Gulmann ( Rapporteur ), D. A. O. Edward, J. -P. Puissochet
 and P. Jann, Judges; N. Fennelly, Advocate-General ; H. A.            and H. Ragnemalm, Judges; N. Fennelly, Advocate-
 Rühl, Principal Administrator, for the Registrar, gave a              General ; L. Hewlett, Administrator, has given a judgment
 judgment on 5 December 1996 , the operative part of                   on 5 December 1996 , in which it rules :
 which is as follows :
                                                                       1 . The transitional periods provided for in Articles 47
 Article 18 (1 ) (a) and Article 22 (3) of the Sixth Council               and 209 of the Act concerning the Conditions of
 Directive 77/388/EEC of 17 May 1977 on the                                 Accession of the Kingdom of Spain and the Portuguese
 harmonization of the laws of the Member States relating                    Republic and the Adjustments of the Treaties expired
  to turnover taxes — Common system of value added tax:                     on 6 October 1995 in the ease of the Kingdom of
  uniform basis of assessment permit the Member States to                   Spain and on 31 December 1994 in the case of the
  regard as an invoice not only the original but also any                   Portuguese Republic.
 ---pagebreak--- No C 40/4            1 EN 1                 Official Journal of the European Communities                                       8 . 2 . 97
2 . Articles 30 and 36 of the EC Treaty preclude                        H. Ragnemalm ( Rapporteur ), Judges; D. Ruiz-Jarabo
     application of national legislation which grants the               Colomer, Advocate-General ; R. Grass, Registrar, has given
     holder of a patent for a pharmaceutical product the                a judgment on 5 December 1996 in which it:
     right to oppose importation by a third party of that
     product from another Member State in circumstances
                                                                        I. declares that, by failing to adopt within the prescribed
     where the holder first put the product on the market
                                                                            periods the laws, regulations and administrative
     in that State after its accession to the European
                                                                            provisions necessary to comply with, first, Council
     Community but before the product could be protected
                                                                            Directive 92/118/EEC of 17 December 1992 laying
     by a patent in that State, unless the holder of the                    down animal health and public health requirements
     patent can prove that he is under a genuine, existing                  governing trade in and imports into the Community of
     legal obligation to market the product in that Member                  products not subject to the said requirements laid
     State.
                                                                            down in specific Community rules referred to in
                                                                            Annex A (1) to Directive 89/662/EEC and, as regards
(') OJ No C 248 , 23 . 9 . 1995 , and                                       pathogens, to Directive 90/425/EEC and, second,
    OJ No C 268 , 14 . 10. 1995 .                                           Council Directive 93/S2/EEC of 24 June 1993
                                                                            amending Directive 89/556/EEC on animal health
                                                                            conditions governing intra-Community trade in and
                                                                            importation from third countries of embryos of
                                                                            domestic animals of the bovine species, the Hellenic
                                                                            Republic has failed to fulfil the obligations imposed on
                                                                            it by Articles 20 (1 ) and 2 (1 ) respectively of those
               JUDGMENT OF THE COURT                                        Directives;
                          ( Sixth Chamber)
                                                                       2 . orders the Hellenic Republic to pay the costs.
                      of 5 December 1996
in    Case    C-91/96 Commission of the European                       (') OJ No C 145 , 18 . 5 . 1996 .
            Communities v. Hellenic Republic ( 1 )
(Failure to fulfil obligations not contested — Directives
92/118/EEC and 93/52/EEC — Failure to transpose
                 within the prescribed periods)
                             ( 97/C 40/07 )                                           JUDGMENT OF THE COURT
                                                                                                 (Fifth Chamber)
                 (Language of the case: Greek)                                              of 12 December 1996
                                                                       in Case C-104/95 (reference for a preliminary ruling from
                                                                       the Polimeles Protodikio, Athens ): Georgios Kontogeorgas
  (Provisional translation; the definitive translation will be                                v. Kartonpak AE (')
          published in the European Court Reports)
                                                                       (Approximation of laws — Self-employed commercial
                                                                       agents — Entitlement to commission — Commercial
In Case C-91/96: Commission of the European                            transactions concluded during the period covered by the
Communities ( Agent: Maria Condou-Durande ) v. Hellenic                                          agency contract)
Republic (Agents : Ioanna Galani-Maragkoudaki and Nana                                             ( 97/C 40/08 )
Dafniou ) — application for a declaration that, by failing
to adopt within the prescribed periods the laws,
regulations and administrative provisions necessary to                                  (Language of the case: Greek)
comply with, first, Council Directive 92/ 118/EEC of
17 December 1992 laying down animal health and public
                                                                         (Provisional translation; the definitive translation will be
health requirements governing trade in and imports into
the Community of products not subject to the said                                published in the European Court Reports)
requirements laid down in specific Community rules
referred to in Annex A ( I ) to Directive 89/662/EEC and, as           In Case C-104/95 : reference to the Court under Article 177
regards pathogens, to Directive 90/425/EEC ( OJ No L 62,               of the EC Treaty by the Polimeles Protodikio, Athens, for
15 . 3 . 1993, p. 49 ) and, second, Council Directive                  a preliminary ruling in the proceedings pending before
93/52/EEC of 24 June 1993 amending Directive                           that court between Georgios Kontogeorgas and Kartonpak
89/556/EEC on animal health conditions governing intra­                AE on the interpretation of Article 7 (2 ) of Council
Community trade in and importation from third countries                Directive   86/653/EEC of 18          December   1986 on the
of embryos of domestic animals of the bovine species ( OJ              coordination of the laws of the Member States relating to
No L 175 , 19 . 7. 1993 , p. 21 ), the Hellenic Republic has           self-employed commercial agents ( OJ No L 382 , 31 . 12 .
failed to fulfil the obligations imposed on it by the Treaty           1986 , p. 17 ) — the Court ( Fifth Chamber ), composed of:
and by those Directives — the Court ( Sixth Chamber),                  D. A. O. Edward, acting for the President of the Chamber,
composed of G. F. Mancini, President of the Chamber,                   C. Gulmann, J. -P. Puissochet, P. Jann ( Rapporteur ) and M.
J. L. Murray, C. N. Kakouris, P. J. G. Kapteyn and                     Wathelet, Judges; G. Cosmas, Advocate-General; H. A.