Local view for "http://purl.org/linkedpolitics/eu/plenary/2003-10-21-Speech-2-217"
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"en.20031021.6.2-217"2
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".
In answer Mrs Riis-Jørgensen's question, I should like to point out that a parallel importation of a medicinal product is a legal form of trade within the internal market, based on Article 28 of the Treaty. It is also subject to the derogations regarding the protection of human health and life and also the protection of industrial and commercial property, provided by Article 30 of the Treaty.
The European Court of Justice has ruled that the derogation to the free movement of goods, justified on the grounds of protection of industrial and commercial property, is only admissible for the purpose of safeguarding rights that constitute the specific subject matter of the property.
The specific point of a trademark is, in particular, to guarantee to the owner that he has the exclusive right to use that trademark for the purpose of putting a product on the market for the first time. Accordingly, Member State legislation protecting industrial and commercial property rights may not be used to oppose the importation of a product that has already been lawfully placed on the market in another Member State by, or with the consent of, the proprietor of that right. In certain circumstances parallel importers are forced to relabel parallel imported medicinal products in order to have effective access to the market of the importing Member State, especially when the use of different trademarks by the proprietor contributes to the artificial partitioning of the markets between Member States.
Partitioning of the markets would still exist if the importer were only able to sell the product in parts of his market. The court has ruled that repackaging and relabelling is not necessary if the parallel importer merely wishes to secure a commercial advantage.
According to the jurisprudence of the court, relabelling is considered justified if it is objectively necessary. In any case, this is to be assessed on the basis of circumstances such as those mentioned in the question – circumstances prevailing at the time of the marketing of the parallel imported medicinal product in the importing Member State.
It is for the national courts to determine in each specific case whether it is objectively necessary for the parallel importer to use the trademark used in the Member State of import to enable the imported products to have effective access to the market.
As regards the national measures mentioned in the question, should more information on the specific circumstances become available to the Commission, these special circumstances will be assessed in the light of the jurisprudence of the court."@en1
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