CELEX: C1995/248/24
Language: en
Date: 1995-09-23 00:00:00
Title: Reference for a preliminary ruling by the High Court of Justice, Chancery Division, Patents Court, by orders of that court of 13 July 1995, in the case of Merck & Co. Inc. and others against Primecrown Ltd and others (Case C-267/95)

23 . 9 . 95            EN                 Official Journal of the European Communities                                    No C 248/ 11
Fer and the Commission of the European Communities was               Bundessozialgericht ( Federal Social Court) of 20 June 1995 ,
brought before the Court of Justice of the European                  which was received at the Court Registry on 8 August 1995 ,
Communities on 4 August 1995 by the Commission of the                for a preliminary ruling in the case of Pascual Merino Garcia
European Communities, represented by Bernd Langeheine,               v. Bundesanstalt fur Arbeit, Kindergeldkasse, on the
of the Legal Service, and Gerard de Bergues, a national              following questions :
official on secondment to the Commission, acting as agents,
with an address for service in Luxembourg at the office of           1 . is subsection I C of Annex I to Regulation ( EEC ) No
Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.                        1408/71 (^ compatible with the EC Treaty, in particular
                                                                          Article 48 ( 2 ) thereof, in so far as it leads to a situation
The appellant claims that the Court should :                              where workers with children resident outside Germany
                                                                          have no right to child allowance in respect of full
— set aside the judgment of the Court of First Instance of
                                                                          calendar months included within a lengthy period of
     6 June 1995 ,
                                                                          unpaid leave but such workers with children resident in
— dismiss the action brought before the Court of First                    Germany do have that right ?
     Instance by the Union Internationale des Chemins de
     Fer, or alternatively refer it back to the Court of First       2 . if subsection I C of Annex I to Regulation ( EEC ) No
     Instance ,                                                           1408/71 is invalid , is the consequence thereof that an
                                                                          'employed person' within the meaning of Article 73 of
— order the respondent to pay the costs incurred by the                   Regulation ( EEC ) No 1408/71 is any person who has
     Commission both in the proceedings before the Court                  been given unpaid leave of absence by his employer on
     of First Instance and in those before the Court of                   the basis of a voluntary agreement, or are there
     Justice .                                                            restrictions in that respect ( e.g. as regards the duration
                                                                          of the leave of absence )?
Pleas in law and main arguments adduced in support:
The Commission considers that the Court of First Instance            (>) OJ No L 149 , 5 . 7 . 1971 , p . 2 .
committed a threefold error of law in ruling:
— first, that Regulation (EEC ) No 1017/68 also applies
     to agreements, decisions and concerted practices
     concerning activities which are 'related to', and               Reference for a preliminary ruling by the High Court of
     ' indispensable for', the provision of transport services,      Justice, Chancery Division, Patents Court, by orders of that
     when that Regulation covers, apart from specific                court of 13 July 1995 , in the case of Merck & Co. Inc. and
     agreements which are restrictively listed and irrelevant                    others against Primecrown Ltd and others
     to the present case , only agreements, decisions and                                      Case C-267/95
     concerted practices which directly concern the provision
     of transport,                                                                              ( 95/C 248/24 )
— second , that leaflet No 130 of the Union Internationale           Reference has been made to the Court of Justice of the
     des Chemins de Fer covers both the supply of transport          European Communities by orders of the High Court of
     and transport rates within the meaning of Regulation            Justice, Chancery Division, Patents Court, of 13 July 1995 ,
      ( EEC ) No 1017/68 , when the contested provisions             which were received at the Court Registry on 8 August
     thereof restrict competition not on the transport market         1995 , for a preliminary ruling in the case of Merck & Co .
     but on the market for the distribution of tickets,              Inc . and others against Primecrown Ltd and others, on the
— lastly, that by offering railway tickets for sale on behalf        following questions :
     of railway companies, travel agencies perform
      ' operations of providers of services ancillary to              1.    that the provisions and effect of Article 47 of the
     transport' within the meaning of Article 1 of Regulation               Spanish Treaty of Accession to the European
      ( EEC ) No 1017/68 , when travel agents do not fall within            Communities will continue to apply to
      the professional category of providers of services                    pharmaceutical products
      ancillary to transport and the Regulation applies in any
                                                                      1.1   imported from Spain; or
      event only to the operations of such providers of
      ancillary services which are directly related to the            1.2   first marketed in Spain
      provision of transport.
                                                                            until
                                                                             ( a ) 7 October 1995 ; or
Reference for a preliminary ruling from the Bundes­                          ( b ) 31 December 1995 , or
 sozialgericht, by order of that court of 20 June 1995 , in the              ( c ) 7 October 1996 , or
 case of Pascual Merino Garcia against Bundesanstalt fur
                     Arbeit, Kindergeldkasse                                 ( d ) 31 December 1996 , or
                        ( Case C-266/95 )                                    ( e ) the end of the third year after the particular
                          ( 95/C 248/23 )                                           pharmaceutical , protected by a product patent in
                                                                                    one or more Member State(s ) of the European
 Reference has been made to the Court of Justice                                    Union and which was previously unpatentable in
 of the European Communities by an order of the                                     Spain, has become patentable in Spain
 ---pagebreak--- No C 248/12           EN                Official Journal of the European Communities                                        23 . 9 . 95
    stating which of such dates is applicable with regard to                     and continue to supply sufficient quantities to
    such acts;                                                                   satisfy the needs of domestic patients; and/or
                                                                           (c ) that country's legislation grants to its authorities,
2.  that the provisions and effect of Article 209 of the                         and its authorities exercise, the right to fix the
    Portuguese Treaty of Accession of the European                               sale price of the Pharmaceutical in that country
    Communities will continue to apply to                                        and legislation prohibits the sale of the
    pharmaceutical products                                                      Pharmaceutical at any other price; and/or
2.1 imported from Portugal; or                                             ( d ) the price of the Pharmaceutical in that country
                                                                                 has been fixed by its authorities at a level at which
2.2 first marketed in Portugal;                                                  substantial exports of the Pharmaceutical from
    until
                                                                                 such country to the Member State are anticipated
                                                                                 with the result that the economic value of the
    ( a ) 1 January 1995 ; or                                                    Patent would be significantly eroded and research
                                                                                 and development for future pharmaceuticals
    ( b ) 31 December 1995 ; or                                                  planned by the Proprietor significantly
                                                                                 undermined, contrary to the rationale underlying
    ( c ) 1 June 1998 ; or                                                       the recent introduction by the EC Council of the
    ( d ) 31 December 1998 ; or
                                                                                 Supplementary Protection Certificate .
    ( e ) the end of the third year after the particular
            pharmaceutical, protected by a product patent in
            one or more Member State(s ) of the European
            Union and which was previously unpatentable in
            Portugal , has become patentable in Portugal
                                                                   Reference for a preliminary ruling from the Bundesverwal­
    stating which of such dates is applicable with regard to       tungsgericht, by order of that court of 30 March 1995 , in the
    such acts;                                                     case      of   the   Bundesanstalt    fur Landwirtschaft         und
                                                                            Ernahrung v. Deutsches Milch-Kontor GmbH
3.  after the expiration of Article 47 ( and/or Article 209 ,                                ( Case C-2 72/95 )
     as appropriate ), in a case where :
                                                                                               ( 95/C 248/25 )
3.1  an undertaking is the proprietor (the 'Proprietor') of a
     patent ( the 'Patent') in one or more Member States of        Reference has been made to the Court of Justice of the
     the European Communities ( the 'Member State') for a          European Communities by an order of the Bundesverwal­
     pharmaceutical product ( the 'Pharmaceutical');               tungsgericht ( Federal Administrative Court) of 30 March
                                                                   1995 , which was received at the Court Registry on
3.2  the Pharmaceutical was first put on the market in a           11 August 1995 , for a preliminary ruling in the case of the
     country by the Proprietor after that country's                Bundesanstalt fur Landwirtschaft und Ernahrung v.
     accession to the EC but at a time when the                    Deutsches Milch-Kontor GmbH on the following
     Pharmaceutical could not be protected by a product            questions :
     patent in that country;
                                                                    1 . is the first subparagraph of Article 2 ( 4 ) of Regulation
3.3  a third party imports the Pharmaceutical from that                 ( EEC ) No 1624/76 ( ] ), as amended by Article 1 of
     country into the Member State;                                     Regulation (EEC) No 1726/79 (2), to be interpreted as
                                                                        meaning that, where skimmed-milk powder produced in
3.4  and the patent legislation in the Member State granted             Germany is exported by lorry to Italy for use in the
     the proprietor of the Patent the right to oppose by legal          manufacture of compound feedingstuffs, the competent
     action the importation of the Pharmaceutical from                  authority is required to take a sample from each lorry
     that country                                                       load and have it analyzed in order to be able to issue the
                                                                        certificate referred to in the provision ?
     do the rules set forth in the EC Treaty concerning the
     free movement of goods prevent the Proprietor from             2 . if question 1 should be answered in the negative, what
     availing himself of the right referred to in paragraph             criteria are to be drawn from Article 2 ( 1 ) ( a ) of
     3.4 above, in particular if:                                       Regulation ( EEC ) No 1624/76, as amended by Article 1
      ( a ) the Proprietor had and continues to have a legal            of Regulation ( EEC ) No 1726/79 in conjunction with
                                                                        Article 10 of Regulation ( EEC ) No 1725/79 ( 3 ) for the
            and/or ethical obligation to market and to
            continue marketing the Pharmaceutical in that               purpose of determining the frequency with which
                                                                        samples must and may be taken in the case of
            country; and/or
                                                                         skimmed-milk powder exported by lorry to Italy ?
      ( b ) that country's and/or EC legislation effectively
            requires that, once the Pharmaceutical is put on        3 . is it compatible with the prohibition of charges having
            the market in that country, the Proprietor supply            an effect equivalent to customs duties ( Articles 9 , 12 and