Generics (UK); Ltd and Harris Pharmaceuticals Ltd v Smith Kline & French Laboratories Ltd. (Free movement of goods) [1992] EUECJ C-191/90 (27 October 1992)

Generics (UK); Ltd and Harris Pharmaceuticals Ltd v Smith Kline & French Laboratories Ltd. (Free movement of goods) [1992] EUECJ C-191/90 (27 October 1992)

Articles 30 and 36 EEC preclude Member State authorities from relying on national law to refuse or grant import authorization for patented products from non-member countries based on whether the patent is worked by manufacture in the national territory or by import from other Member States, as such practice is discriminatory and hinders intra-Community trade. However, Articles 47 and 209 of the Act of Accession permit authorities to prohibit importation from Spain and Portugal if national law confers such a right and the patent proprietor exercises it.

Citation
[1992] EUECJ C-191/90
Parties
Proprietor of Patents / Applicant: Smith Kline and French Laboratories Limited (SKF); Licensee / Respondent: Generics UK Limited; Licensee / Respondent: Harris Pharmaceuticals Limited
Jurisdiction
European Union
Judgment Date
27 October 1992
Procedural Posture
Preliminary Ruling (article 177 Eec) / Reference From Court of Appeal of England and Wales
Outcome
Preliminary ruling issued; discriminatory national practices precluded; derogation allowed under specific conditions for Spain and Portugal.
Legal Topics
Free Movement of Goods, Patents, Licences of Right, Import Restrictions, Discrimination Between Member States, Derogations Under Act of Accession
European Union Law Intellectual Property Law Free Movement of Goods Patents Licences of Right Import Restrictions Discrimination Between Member States Derogations Under Act of Accession

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Parties

Smith Kline and French Laboratories Limited (SKF)

Proprietor of Patents / Applicant

Generics UK Limited

Licensee / Respondent

Harris Pharmaceuticals Limited

Licensee / Respondent

Procedural Posture

Preliminary Ruling (article 177 Eec) / Reference From Court of Appeal of England and Wales

Legal Issues

  1. 1 Whether national authorities may, under Articles 30 and 36 EEC, rely on national patent law to refuse or grant import authorizations for patented products from non-member countries based on place of manufacture.
  2. 2 Whether Articles 47 and 209 of the Act of Accession of Spain and Portugal allow Member State authorities to prohibit importation of patented pharmaceutical products from Spain and Portugal under certain conditions.

Ratio Decidendi

Articles 30 and 36 EEC preclude Member State authorities from relying on national law to refuse or grant import authorization for patented products from non-member countries based on whether the patent is worked by manufacture in the national territory or by import from other Member States, as such practice is discriminatory and hinders intra-Community trade. However, Articles 47 and 209 of the Act of Accession permit authorities to prohibit importation from Spain and Portugal if national law confers such a right and the patent proprietor exercises it.

Court Disposition

Preliminary ruling issued; discriminatory national practices precluded; derogation allowed under specific conditions for Spain and Portugal.

Orders

  • Articles 30 and 36 EEC preclude discriminatory reliance on national law for import authorization of patented products based on place of manufacture.
  • Articles 47 and 209 of the Act of Accession allow prohibition of imports from Spain and Portugal if national law confers such a right and the proprietor exercises it.