Circumventing The Pitfalls of Article 177 EEC
| DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02819.x |
| Published date | 01 March 1989 |
| Author | Steve Weatherill |
| Date | 01 March 1989 |
NOTES
OF
CASES
CIRCUMVENTING
THE
PITFALLS
OF
ARTICLE 177 EEC
THE
decision of the Court of Appeal
in
R.
v.
The Pharniaceutical
Society
of
Great Brituin,
ex
purte The Associatiort
of
Pharmaceutical
Importers'
to make use of the preliminary reference procedure
instituted by Article 177 of the Treaty of Rome is worthy of
attention for a variety of reasons. The substantive issues
in
the
case, which concern Article
30
EEC, are profound
in
themselves?
but at this early stage of the litigation the case has already
illuminated important areas concerning the relationship between a
national court, before which directly effective provisions of
Community law are pleaded, and the European Court of Justice.
The litigation has its source
in
the highly competitive pharmaceuti-
cal industry.
The
applicants are an association concerned
with
the
import into Britain of pharmaceuticals licensed in other member-
States under
the
Product Licence (Parallel Import) system.
The
majority of the
220
imported products covered by this system bear
the same brand name as the domestic product and are
of
no
present concern. Some
50
of
the
imported pharmaceuticals, however,
while therapeutically equivalent to their British counterparts, bear
a different brand name. Until the summer of 1986 the applicants
enjoyed substantial sales of these
50
products, because chemists,
attracted by the generally lower price of the imports, were regularly
prepared to supply patients
with
the imported items even when the
doctor's prescription named only the British equivalent.
As a result of what the applicants allege were measures taken
in
the
summer of 1986 by
the
Secretary of State for Social Services3
and by
the
Pharmaceutical Society, chemists ceased supplying the
imported product instead of the differently named but therapeutically
equivalent British product. In consequence the market for the
50
pharmaceuticals
in
this particular category dried up. Although it
has not been formally conceded by the respondents that positive
measures of
this
nature were taken, there seems to be no doubt
in
the mind of the Court that the applicants have established that
they occurred.
The applicants are unable to regain their market share simply by
altering the name of their products to correspond
with
the
British
equivalents because of the trade mark laws. However, they claim
that the measures taken are equivalent to
the
imposition of a
quantitative restriction
on
imports of pharmaceuticals, contrary to
'
[
19871
3
C.M.L.R. 951.
*
Scc Morcom (1988) E.I.P.R. 47.
'
Thc rcspondcnt in parallcl procccdings, in which similar questions have bccn rcfcrrcd
232
undcr Articlc 177.
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