CELEX: C1998/340/13
Language: en
Date: 1998-11-07 00:00:00
Title: Reference for a preliminary ruling by the Oberster Gerichtshof by Decision of 12 August 1998 in the case of The Wellcome Foundation Ltd v. Nycomed Austria GmbH (Case C-330/98)

C 340/8               EN                 Official Journal of the European Communities                                     7.11.98
    Directive 76/464/EEC of 4 May 1976 on pollution                     merely clarified how product in Regulation (EEC)
    caused by certain dangerous substances discharged                   No 1768/92 was to be understood ab initio?
    into the aquatic environment of the Community, the
    Italian Republic has failed to fulfil its obligations           3. If the answer to Question 2 is that Regulation (EC)
    under that Directive;                                               No 1610/96 amended Regulation (EEC) No 1768/92:
2. declares that, by failing to provide the Commission                  When determining whether the conditions for granting
    with the information requested by it on the level of                a protection certificate under Article 19 of Regulation
    water pollution in Italy in order to enable it to                   (EEC) No 1768/92 are satisfied, is the relevant date
    establish the extent of the obligations flowing from                that on which the application for the protection
    Article 7 of Directive 76/464/EEC, the Italian                      certificate was made or that on which the national
    Republic has failed to fulfil its obligations under                 authority (here, the Austrian Patent Office) issued its
    Article 5 of the EC Treaty;                                         decision?
                                                                    4. If the term product in Article 19 of Regulation (EEC)
3. orders the Italian Republic to pay the costs.                        No 1768/92 is to be given a broad construction,
                                                                        whether ab initio or only since Regulation (EC)
(1) OJ C 294 of 5.10.1996.                                              No 1610/96, but the relevant legal position is that
                                                                        prevailing at the time of the decision on the
                                                                        application for the protection certificate:
                                                                        Does a breach of Article 19 of Regulation (EEC)
                                                                        No 1768/92 constitute a ground for invalidity that is
                                                                        not set out in Article 15 of that Regulation, or is the
Reference for a preliminary ruling by the Oberster                      protection certificate otherwise ineffective?
Gerichtshof by Decision of 12 August 1998 in the case of
The Wellcome Foundation Ltd v. Nycomed Austria GmbH                 (1) OJ L 182 of 2.7.1992, p. 1.
                       (Case C-330/98)                              (2) OJ L 198 of 8.8.1996, p. 30.
                        (98/C 340/13)
Reference has been made to the Court of Justice of the
European Communities by Decision of 12 August 1998
                                                                    Reference for a preliminary ruling by the Tribunale
from the Oberster Gerichtshof (Austrian Supreme Court),
                                                                    Amministrativo Regionale per la Lombardia, by order of
which was received at the Court Registry on 7 September
                                                                    that court of 28 January 1998, in the case of Agenzia R di
1998, for a preliminary ruling in the case of The
                                                                    Recapito Srl v. Poste Italiane Ente Pubblico Economico
Wellcome Foundation Ltd v. Nycomed Austria GmbH on
                                                                                 and Rinaldi Agenzia di Recapito Srl
the following questions:
                                                                                           (Case C-336/98)
1   Is the term product, as used in Ð inter alia Ð                                          (98/C 340/14)
    Article 19 of Council Regulation (EEC) No 1768/92
    of 18 June 1992 concerning the creation of a                    Reference has been made to the Court of Justice of the
    supplementary protection certificate for medicinal              European Communities by an order of the Tribunale
    products (1), to be construed in that article as covering       Amministrativo Regionale per la Lombardia (Lombardy
    only an active ingredient or substance in a specific            Regional Administrative Court) of 28 January 1998,
    chemical compound or Ð in so far as the                         which was received at the Court Registry on 14 September
    pharmacological characteristics are equivalent Ð also           1998, for a preliminary ruling in the case of Agenzia R di
    its derivatives (such as salts)?                                Recapito Srl v. Poste Italiane Ente Pubblico Economico
                                                                    and Rinaldi Agenzia di Recapito Srl, on the following
                                                                    questions:
2. if the answer to Question 1 is that the term product is
    to be broadly construed:
                                                                    1. Whether or not the reservation to the State of the
                                                                        express postal service, by virtue of Presidential Decree
    If such a construction of the term product as used in               No 156/76 (and the consequent restrictive power
    Article 19 of Council Regulation (EEC) No 1768/92                   under public law to grant concessions to third parties
    derives only from the recitals in the preamble to                   for the running of those services) conflicts with
    Regulation (EC) No 1610/96 of the European                          Articles 86 and 90 of the Treaty as regards the services
    Parliament and of the Council of 23 July 1996                       which are regarded as supplementary to the exclusive
    concerning the creation of a supplementary protection               right of the State to collect, carry and deliver mail and
    certificate for plant protection products (2), which may,           which in any event can be dissociated from that right
    mutatis mutandis, be used also for the purpose of                   on the basis of calculation of the added value arising
    construing Regulation (EEC) No 1768/92, was                         from the extra price which the customer is prepared to
    Regulation (EEC) No 1768/92 amended by Regulation                   pay, without, however, there being any impact on
    (EC) No 1610/96, or has Regulation (EC) No 1610/96                  price limits in the reserved sector?