Phytheron International SA v Jean Bourdon SA.
Date: 1997-03-20
9 Again according to the order for reference, it is common ground that the product which was the subject of the contract at issue was manufactured in Turkey, where Schering, a company incorporated under German law and belonging to the German Hoechst group, has it manufactured by another subsidiary before importing it into Germany.
10 However, during the proceedings before the Court, it was stated that the place of manufacture of the product in question was in fact Germany, from where it was thereafter exported to Turkey, and that the batch at issue had been acquired there from a Turkish subsidiary of the German Hoechst group by an independent trader, who then sold it to Phytheron.
11 For the reasons set out in paragraphs 12 to 14 below, the Court in the present case can answer the national court's questions only on the basis of the facts as they appear from the order for reference.
12 Were the Court to base its ruling on the facts mentioned in course of proceedings before it, the very substance of the problem raised by the questions referred would be changed. It would then have to address a question of principle which it has not yet had occasion to decide, on the basis of facts which required clarification to enable a proper answer to be given.
13 Furthermore, in the context of proceedings raising an important point on the extent of the rights which a trade mark owner may derive from the mark, there are specific reasons why the Court should not depart from the facts as stated in the order for reference, given that the owner of the mark, not being a party to the main proceedings, cannot put his arguments to the Court.
14 Finally, to alter the substance of questions referred for a preliminary ruling would be incompatible with the Court's function under Article 177 of the Treaty and with its duty to ensure that the Governments of the Member States and the parties concerned are given the opportunity to submit observations under Article 20 of the EC Statute of the Court, bearing in mind that, under that provision, only the order of the referring court is notified to the interested parties (see inter alia the judgments in Joined Cases 141/81 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6, and Case C-178/95 Wiljo v Belgium [1997] ECR I-0000, paragraph 30).
17 It should be noted that, according to the Court's case-law, Article 7 of the Trade Mark Directive is worded in general terms and comprehensively regulates the question of the exhaustion of trade mark rights for products traded in the Community, and that where Community directives provide for the harmonization of measures necessary to ensure the protection of the interests referred to in Article 36 of the Treaty, any national measure relating thereto must be assessed in relation to the provisions of that directive and not Articles 30 and 36 of the Treaty (see Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others [1996] ECR I-3457, paragraphs 25 and 26).
18 The national court's questions must therefore be understood as relating to Article 7 of the Trade Mark Directive, given that the Court has already held that that article is to be interpreted in the light of the Treaty rules on the free movement of goods (Bristol-Myers Squibb, paragraph 27), and that when applying national law, whether adopted before or after the directive, the national court which has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result which the directive has in view (see Joined Cases C-71/94, C-72/94 and C-73/94 Eurim-Pharm [1996] ECR I-3603, paragraph 26).
20 Firstly, Article 7(1) of the Trade Mark Directive is framed in terms corresponding to those used by the Court in judgments which, in interpreting Articles 30 and 36 of the Treaty, have recognized in Community law the principle of exhaustion of the rights conferred by a trade mark. It thus reiterates the case-law of the Court to the effect that the owner of a trade mark protected by the legislation of a Member State cannot rely on that legislation to prevent the importation or marketing of a product which has been put on the market in another Member State by him or with his consent (see Bristol-Myers Squibb, paragraph 31).