INTERNATIONAL TREATIES
EC Treaty
Judgment of the Court of Justice of the European Communities dated 5 December 19961
(Joined cases C-267/95 and C-268/95, Merck & Co. Inc. and Others v. Primecrown Ltd. and Others, Beecham Group plc v. Europharm of Worthing Ltd. - references for a preliminary ruling from the UK High Court of Justice)
Headword: Merck II
Articles 30, 36 EC Treaty; Articles 47, 209 Act of EU Accession of Spain and Portugal
Keyword: "Principle of Community-wide exhaustion of patent rights (affirmed) - parallel imports of pharmaceutical products - transitional provisions Portugal/Spain"
Headnotes
1. Accession of new member states to the Communities - Spain - Portugal - free movement of goods - industrial and commercial property - patent rights - pharmaceutical products - right of a holder of a patent for a pharmaceutical product to prevent during a transitional period products put on the market in Spain or Portugal by himself or with his consent from being marketed and exported - dates on which the respective transitional periods expire (1985 Act of Accession, Articles 47 and 209)
2. Free movement of goods - industrial and commercial property - patent rights - protection - limits - principles laid down by the judgment dated 14 July 1981 in Case No. 187/802 - pharmaceutical product covered by a patent in a member state marketed by the patent holder for the first time In another member state after that state's accession to the Communities but before it became patentable in that state - grant to the holder, by the legislation of the member state which issued the patent, of the right to oppose importation of that product into that state by a third party - not permissible - justification based on the patent holder's legal obligation to market the product in the member state of exportation - permissible - justification based on an ethical obligation to supply the market of that state or on price controls imposed by that state - not permissible (EC Treaty, Articles 30 and 36)
Order
1. The transitional periods provided for in Articles 47 and 209 of the Act concerning the Conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the Adjustments of the Treaties expired on 6 October 1995 in the case of the Kingdom of Spain and on 31 December 1994 in the case of the Portuguese Republic.
2. Articles 30 and 36 EC Treaty preclude application of national legislation which grants the holder of a patent for a pharmaceutical product the right to oppose importation by a third party of that product from another member state in circumstances where the holder first put the product on the market in that state after its accession to the European Community but before the product could be protected by a patent in that state, unless the holder of the patent can prove that he is under a genuine, existing legal obligation to market the product in that member state.
EU 2/97