JUDGMENT OF THE COURT

of 21 December 2017

in Case E-5/17

Merck Sharp & Dohme Corp. v The Icelandic Patent Office (Einkaleyfastofan)

(Regulation (EEC) No 1768/92 — Medicinal products — Supplementary protection certificate — Certificate of negative duration)

(2018/C 130/03)

In Case E-5/17, Merck Sharp & Dohme Corp. v The Icelandic Patent Office (Einkaleyfastofan) — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Supreme Court of Iceland (Hæstiréttur Íslands) concerning the interpretation of Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, the Court, composed of Carl Baudenbacher, President, Per Christiansen (Judge-Rapporteur), and Páll Hreinsson, Judges, gave judgment on 21 December 2017, the operative part of which is as follows:

Regulation (EEC) No 1768/92 permits the issuing of a supplementary protection certificate where the period that has elapsed between the date on which the basic patent application was lodged and the date of the first marketing authorisation in the EEA is less than five years. This result is not affected by the fact that the Joint Committee Decision incorporating Regulation (EC) No 1901/2006 and Regulation (EC) No 469/2009 into the EEA Agreement has not entered into force.