CELEX: C1995/159/32
Language: en
Date: 1995-06-24 00:00:00
Title: Reference for a preliminary ruling by the High Court of Justice, Chancery Division, Patents Court, by order of that court of 31 October 1994, in the case of Yamanouchi Pharmaceutical Co. Ltd against the Comptroller-General of Patents, Designs and Trade Marks (Case C-110/95)

24 . 6 . 95             I EN I                Official Journal of the European Communities                                  No C 159/17
Reference for a preliminary ruling by the High Court of                  Reference for a preliminary ruling by the High Court of
Justice, Chancery Division, Patents Court, by order of that              Justice, Queen's Bench Division, by order of that court of
court of 31 October 1994, in the case of Yamanouchi                      3 February 1995 , in the case of The Queen against the
Pharmaceutical Co . Ltd against the Comptroller-General of               Secretary of State for the Home Department, ex parte:
                Patents, Designs and Trade Marks                                                  Abbas Radiom
                           ( Case C-1 10/95 )                                                   ( Case C-1 1 1 /95 )
                             ( 95/C 159/32 )                                                      ( 95 /C 159/33
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of                    Reference has been made to the Court of Justice of the
Justice , Chancery Division , Patents Court, of 31 October               European Communities by an order of the High Court of
1994 , which was received at the Court Registry on 3 April               Justice, Queen's Bench Division, of 3 February 1995 , which
1995 , for a preliminary ruling in the case of Yamanouchi                was received at the Court Registry on 3 April 1994 , for a
Pharmaceutical Co . Ltd against the Comptroller-General of               preliminary ruling in the case of The Queen against the
Patents, Designs and Trade Marks, on the following                       Secretary of State for the Home Department, ex parte:
question:                                                                Abbas Radiom, on the following questions :
In the case of an application for a certificate under Council            1. (1)     In Article 8 of Council Directive 64/22 1 /EEC of
Regulation ( EEC ) No 1768/92 of 18 June 1992 concerning                     25 February 1964 on the coordination of special
the creation of a supplementary protection certificate for                   measures concerning the movement and residence of
medicinal products ( 1 ) in a particular Member State ( in casu,             foreign nationals which are justified on grounds of
the United Kingdom ) in circumstances where:                                 public policy, public security or public health do the
                                                                             words 'the same legal remedies . . . as are available to
— a medicinal product was ( on 2 January 1993 ) the subject                  nationals of the State concerned in respect of acts of the
      of a first marketing authorization in the Community ( in               administration' refer ( a ) to specific remedies available in
      casu, in France ) which was obtained pursuant to Council               respect of decisions concerning entry by nationals of the
      Directive 65/65/EEC of 26 January 1965 on the                          State concerned ( in casu, an appeal to an immigration
      approximation of provisions laid down by law,                          adjudicator) or „( b ) do they refer only to remedies
      regulation or administrative action relating to                        available in respect of acts of the administration
      proprietary medicinal products ( 2 ) ( as amended ) after              generally ( in casu, an application for judicial review)?
      1 January 1985 ,
                                                                             (2)    If the answer to ( 1 ) is (a ), do the words quoted
— the medicinal product was ( on 2 January 1993 )                            from Article 8 of Directive 64/22 1/EEC refer only to the
      protected by a valid basic patent in the Member                        legal remedies available to nationals of the State
      State,                                                                 concerned in the same circumstances ( in casu, refusal of
                                                                             entry on grounds of national security), or do they also
— at the date of submission of such application, marketing                   refer to the specific remedies available in analogous or
      authorization in the Member State had yet to be                        similar   circumstances      to   nationals   of  the   State
      obtained,                                                              concerned ; and, if so, how similar or analogous must the
                                                                             circumstances be ?
— application for a certificate as referred to in paragraph 1
      of Article 19 was submitted to the relevant national
      authority (namely the UK Patent Office ) within six                2 . In the light of the answer to question 1 , where a
      months of 2 January 1993 , as laid down in paragraph 2                 Community national is refused entry into the United
      of Article 19 ,                                                        Kingdom on grounds of national security does Article 8
                                                                             of Directive 64/22 1 /EEC require that national to have a
                                                                             right of appeal to an immigration adjudicator if, on the
is Council Regulation ( EEC ) No 1768/92, and in particular
                                                                             correct construction of the relevant provisions of
Article 19 thereof, to be interpreted so as to allow the grant
                                                                             national law, a British national refused entry to the
of an SPC to the patentee in that Member State or must the
                                                                             United Kingdom on grounds of national security has a
provisions of Articles 3 ( b ), 8 and 9 concerning a valid
                                                                             right of appeal for the purpose of establishing that he is a
marketing authorization in the Member State also be                          British national and is therefore entitled to enter the
complied with ?
                                                                             United Kingdom irrespective of whether his presence in
                                                                             the United Kingdom is undesirable for reasons of
(M OJ No L 182 , 2 . 7 . 1992 , p . 1 .                                      national security ?
( 2 ) OJ No 22 , 9 . 2 . 1965 , p . 369 .
                                                                         3.  Do the opening words of Article 9 ( 1 ) of Directive
                                                                             64/22 1/EEC ('where there is no right of appeal to a court