Duphar BV and others v The Netherlands State.
Date: 1984-02-07
16 ALTHOUGH IT IS NOT POSSIBLE , CONTRARY TO THE CONTENTION OF THE DEFENDANT IN THE MAIN PROCEEDINGS , TO EQUATE THE COMPETENT AUTHORITY OF A MEMBER STATE WHICH , WITHIN THE FRAMEWORK OF A HEALTH-CARE INSURANCE SCHEME FINANCED BY CONTRIBUTIONS FROM THE INSURED PERSONS AND BY FINANCING FROM THE PUBLIC AUTHORITIES , DRAWS UP RULES GOVERNING AND LIMITING REIMBURSEMENT OF THE COSTS OF HEALTH CARE , WITH AN ECONOMIC OPERATOR WHO IN EACH CASE FREELY CHOOSES     THE GOODS WHICH HE ACQUIRES ON THE MARKET , IT MUST BE RECOGNIZED THAT COMMUNITY LAW DOES NOT DETRACT FROM THE POWERS OF MEMBER STATES TO ORGANIZE THEIR SOCIAL SECURITY SYSTEMS AND TO ADOPT , IN PARTICULAR , PROVISIONS INTENDED TO GOVERN THE CONSUMPTION OF PHARMACEUTICAL PREPARATIONS IN ORDER TO PROMOTE THE FINANCIAL STABILITY OF THEIR HEALTH-CARE INSURANCE SCHEMES .
17 LIKEWISE , IT MUST BE RECOGNIZED THAT IN A SCHEME WHICH - LIKE THAT IN FORCE IN THE NETHERLANDS - IS BASED ON THE PRINCIPLE OF REIMBURSEMENT IN RESPECT OF ALL MEDICINAL PREPARATIONS WHICH MAY BE PRESCRIBED , IT IS NOT IN PRINCIPLE INCOMPATIBLE WITH COMMUNITY LAW FOR THE MEMBER STATE CONCERNED , WITH A VIEW TO ACHIEVING ITS AIM OF LIMITING COSTS , TO PREPARE LIMITATIVE LISTS EXCLUDING CERTAIN PRODUCTS FROM THE REIMBURSEMENT SCHEME .
20 HOWEVER , IN VIEW OF THE SPECIAL NATURE , IN THAT RESPECT , OF THE TRADE IN PHARMACEUTICAL PRODUCTS , NAMELY THE FACT THAT SOCIAL SECURITY INSTITUTIONS ARE SUBSTITUTED FOR CONSUMERS AS REGARDS RESPONSIBILITY FOR THE PAYMENT OF MEDICAL EXPENSES , LEGISLATION OF THE TYPE IN QUESTION CANNOT IN ITSELF BE REGARDED AS CONSTITUTING A RESTRICTION ON THE FREEDOM TO IMPORT GUARANTEED BY ARTICLE 30 OF THE TREATY IF CERTAIN CONDITIONS ARE SATISFIED .
21 IN THAT REGARD IT MUST BE STRESSED THAT FOR SUCH LEGISLATION TO BE IN CONFORMITY WITH THE TREATY THE CHOICE OF THE MEDICINAL PREPARATIONS TO BE EXCLUDED MUST     BE FREE OF ANY DISCRIMINATION TO THE DETRIMENT OF IMPORTED MEDICINAL PREPARATIONS . TO THAT END , THE EXCLUSIONARY LISTS MUST BE DRAWN UP IN ACCORDANCE WITH OBJECTIVE CRITERIA , WITHOUT REFERENCE TO THE ORIGIN OF THE PRODUCTS , AND MUST BE VERIFIABLE BY ANY IMPORTER . IF THOSE CONDITIONS ARE FULFILLED , AN IMPORTER MAY SECURE ACCESS TO THE NETHERLANDS MARKET PROVIDED THAT HE IS IN A POSITION TO MARKET A PRODUCT WHICH , WHILST HAVING THE SAME THERAPEUTIC VALUE , OFFERS A PRICE ADVANTAGE OVER SOME OTHER PRODUCT AVAILABLE ON THE MARKET . SUCH RULES WOULD IN NO WAY DETRACT FROM THE FREEDOM TO MARKET ANY PRODUCT MEETING THAT REQUIREMENT , WHICH RELATES NOT TO THE NATURE OF THE PRODUCT BUT ONLY TO ITS PRICE .
23 IF THE NATIONAL COURT SHOULD FIND THAT THE MEASURE WHOSE COMPATIBILITY WITH COMMUNITY LAW IT IS CALLED UPON TO CONSIDER DOES NOT MEET THE CONDITIONS TO WHICH SUCH CONFORMITY IS SUBJECT , IT SHOULD BE BORNE IN MIND WITH REGARD TO THE APPLICATION OF ARTICLE 36 OF THE TREATY , AS THE COURT HAS HELD ON MANY OCCASIONS ( FOR EXAMPLE THE JUDGMENT OF 19 DECEMBER 1961 IN CASE 7/61 COMMISSION V ITALY ( 1961 ) ECR 317 ), THAT ARTICLE 36 RELATES TO MEASURES OF A NON-ECONOMIC NATURE . THAT PROVISION CANNOT THEREFORE JUSTIFY A MEASURE WHOSE PRIMARY OBJECTIVE IS BUDGETARY INASMUCH AS IT IS INTENDED TO REDUCE THE OPERATING COSTS OF A SICKNESS INSURANCE SCHEME .

B - THE INTERPRETATION OF ARTICLE 34 OF THE TREATY