61976J0107

1 . QUESTIONS REFERRED FOR A PRELIMINARY RULING - INTERLOCUTORY PROCEEDINGS FOR AN INTERIM ORDER - REFERENCE OF SUCH CASES TO THE COURT - VALIDITY

( EEC TREATY , SECOND PARAGRAPH OF ARTICLE 177 )

2 . QUESTIONS REFERRED FOR A PRELIMINARY RULING - INTERLOCUTORY PROCEEDINGS FOR AN INTERIM ORDER ( ' EINSTWEILIGE VERFUGUNG ' ) - REFERENCE OF SUCH CASES TO THE COURT - PROCEEDINGS ON THE SUBSTANCE OF THE CASE - INSTITUTION THEREOF - POSSIBILITY - DUTY TO REFER CASES TO THE COURT - NONE

( EEC TREATY , THIRD PARAGRAPH OF ARTICLE 177 )

1 . THE SUMMARY AND URGENT CHARACTER OF A PROCEDURE IN THE NATIONAL COURT DOES NOT PREVENT THE COURT FROM REGARDING ITSELF AS VALIDLY SEISED UNDER THE SECOND PARAGRAPH OF ARTICLE 177 WHENEVER A NATIONAL COURT OR TRIBUNAL CONSIDERS THAT IT IS NECESSARY TO MAKE USE OF THAT PARAGRAPH .

2 . THE THIRD PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY MUST BE INTERPRETED AS MEANING THAT A NATIONAL COURT OR TRIBUNAL IS NOT REQUIRED TO REFER TO THE COURT A QUESTION OF INTERPRETATION OR VALIDITY MENTIONED IN THAT ARTICLE WHEN THE QUESTION IS RAISED IN INTERLOCUTORY PROCEEDINGS FOR AN INTERIM ORDER ( ' EINSTWEILIGE VERFUGUNG ' ) EVEN WHERE NO JUDICIAL REMEDY IS AVAILABLE AGAINST THE DECISION TO BE TAKEN IN THE CONTEXT OF THOSE PROCEEDINGS , PROVIDED THAT EACH OF THE PARTIES IS ENTITLED TO INSTITUTE PROCEEDINGS OR TO REQUIRE PROCEEDINGS TO BE INSTITUTED ON THE SUBSTANCE OF THE CASE AND THAT DURING SUCH PROCEEDINGS THE QUESTION PROVISIONALLY DECIDED IN THE SUMMARY PROCEEDINGS MAY BE RE-EXAMINED AND MAY BE THE SUBJECT OF A REFERENCE TO THE COURT UNDER ARTICLE 177 .

IN CASE 107/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE OBERLANDESGERICHT KARLSRUHE FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

HOFFMANN-LA ROCHE , GRENZACH-WYHLEN ( GERMANY )

AND

CENTRAFARM VERTRIEBSGESELLSCHAFT PHARMAZEUTISCHER ERZEUGNISSE MBH , BENTHEIM ( GERMANY ),

ON THE INTERPRETATION OF ARTICLES 30 , 36 , 86 AND 177 OF THE SAID TREATY ,

1 BY ORDER OF 7 OCTOBER 1976 , WHICH REACHED THE COURT ON 17 NOVEMBER 1976 , THE OBERLANDESGERICHT KARLSRUHE HAS REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION FIRST OF THE THIRD PARAGRAPH OF THAT ARTICLE AND SECONDLY OF CERTAIN OTHER PROVISIONS OF THE TREATY , IN PARTICULAR ARTICLES 36 AND 86 , CONSIDERED FROM THE POINT OF VIEW OF THEIR EFFECT ON THE PROTECTION OF TRADE-MARK RIGHTS . THOSE QUESTIONS HAVE BEEN REFERRED TO THE COURT IN THE CONTEXT OF PROCEEDINGS BROUGHT BEFORE THE GERMAN COURTS BY AN UNDERTAKING WHICH , CLAIMING THAT THE TRADE-MARK RIGHTS WHICH IT EXERCISES IN RESPECT OF CERTAIN MEDICINAL PRODUCTS HAVE BEEN INFRINGED BY THE CONDUCT OF ANOTHER UNDERTAKING , HAS APPLIED FOR AN INTERIM ORDER ( EINSTWEILIGE VERFUGUNG ) PROHIBITING THE LATTER TO USE THE TRADE-MARKS AT ISSUE .

AN APPEAL WAS MADE AGAINST THE JUDGMENT OF THE LANDGERICHT FREIBURG GRANTING THAT ORDER TO THE OBERLANDESGERICHT WHICH , BEFORE TAKING ITS DECISION , HAS REFERRED TO THE COURT FOR A PRELIMINARY RULING THE THREE QUESTIONS MENTIONED ABOVE .

2 BY THE FIRST QUESTION , THE OBERLANDESGERICHT ASKS WHETHER THE COURT OF A MEMBER STATE IS , UNDER THE THIRD PARAGRAPH OF ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY , UNDER A DUTY ' TO REFER A QUESTION CONCERNING THE INTERPRETATION OF COMMUNITY LAW TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES FOR A RULING WHEN THIS QUESTION ARISES DURING INTERLOCUTORY PROCEEDINGS FOR AN INTERIM ORDER WHEN IN SUCH PROCEEDINGS NO APPEAL LIES AGAINST THE COURT ' S DECISION , BUT WHEN ON THE OTHER HAND IT IS OPEN TO THE PARTIES TO HAVE THE QUESTION CONCERNING THE SUBJECT-MATTER OF THE INTERLOCUTORY PROCEEDINGS MADE THE SUBJECT-MATTER OF AN ORDINARY ACTION , DURING WHICH A REFERENCE UNDER THE THIRD PARAGRAPH OF ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY WOULD HAVE IF NECESSARY TO BE MADE ' .

3 UNDER THE GERMAN CODE OF CIVIL PROCEDURE ( ZIVILPROZESSORDNUNG ) THE COURT HAVING JURISDICTION MAY , IN SUMMARY PROCEEDINGS , GRANT INTERIM ORDERS IN CASES OF URGENCY IN ORDER TO PROTECT CERTAIN RIGHTS THAT ARE UNDER THREAT . THE ORDER , GRANTED WITHOUT A HEARING BY THE COURT TO WHICH APPLICATION HAS BEEN MADE , IS SUBJECT TO AN APPEAL , BROUGHT BY THE PARTY WHO HAS BEEN UNSUCCESSFUL , BEFORE THE SAME COURT . AN APPEAL THEN LIES AGAINST THAT DECISION TO THE HIGHER COURT WHICH MAKES A DEFINITIVE DECISION ON THE APPLICATION FOR AN INTERIM ORDER , WITHOUT ITS BEING POSSIBLE FOR THE PARTIES TO APPEAL TO A FURTHER COURT OF APPEAL IN THE CONTEXT OF THOSE PROCEEDINGS . THE PARTY AGAINST WHOM AN INTERIM ORDER HAS BEEN GRANTED MAY , HOWEVER , BY APPLICATION LODGED WITH THE COURT OF FIRST INSTANCE , REQUIRE THE PLAINTIFF TO INSTITUTE A MAIN ACTION , TO WHICH THE PROVISIONS OF THE ORDINARY CODE OF CIVIL PROCEDURE THEN APPLY . ALTHOUGH IT OFTEN HAPPENS , ESPECIALLY IN MATTERS CONCERNING THE PROTECTION OF INDUSTRIAL AND COMMERCIAL PROPERTY , THAT THE DECISION ADOPTED IN THE INTERLOCUTORY PROCEEDINGS IS ACCEPTED AS THE SOLUTION TO THE DISPUTE , THE POSSIBILITY OF INSTITUTING OR OF REQUIRING THE OTHER PARTY TO INSTITUTE THE MAIN ACTION IS NOT IN ANY WAY WITHOUT PRACTICAL IMPORTANCE . MOREOVER , IT APPEARS FROM INFORMATION GIVEN TO THE COURT BY THE PARTIES DURING THE PROCEEDINGS THAT THE MAIN ACTION HAS IN FACT BEEN INSTITUTED IN THE PRESENT CASE .

4 THE THIRD PARAGRAPH OF ARTICLE 177 OF THE TREATY CONCERNING THE JURISDICTION OF THE COURT TO GIVE PRELIMINARY RULINGS ON THE INTERPRETATION OF THE TREATY AND ON THE VALIDITY AND INTERPRETATION OF MEASURES OF SECONDARY COMMUNITY LAW PROVIDES THAT :

' WHERE ANY SUCH QUESTION IS RAISED IN A CASE PENDING BEFORE A COURT OR TRIBUNAL OF A MEMBER STATE , AGAINST WHOSE DECISIONS THERE IS NO JUDICIAL REMEDY UNDER NATIONAL LAW , THAT COURT OR TRIBUNAL SHALL BRING THE MATTER BEFORE THE COURT OF JUSTICE . '

THE FIRST QUESTION REFERRED BY THE OBERLANDESGERICHT CONCERNS THAT PROVISION ALONE AND NOT THE SECOND PARAGRAPH WHICH PROVIDES THAT THE OTHER COURTS OR TRIBUNALS OF THE MEMBER STATES MAY , BUT ARE NOT REQUIRED TO , BRING SUCH MATTERS BEFORE THE COURT OF JUSTICE FOR PRELIMINARY RULINGS . ALTHOUGH , THEREFORE , THE COURT IS NOT CALLED UPON , IN THE PRESENT CASE , TO INTERPRET THE SECOND PARAGRAPH , NEVERTHELESS IT IS NECESSARY TO NOTE THAT THERE IS NO DOUBT THAT THE SUMMARY AND URGENT CHARACTER OF A PROCEDURE IN THE NATIONAL COURT DOES NOT PREVENT THE COURT FROM REGARDING ITSELF AS VALIDLY SEISED UNDER THAT PARAGRAPH WHENEVER A NATIONAL COURT OR TRIBUNAL CONSIDERS THAT IT IS NECESSARY TO MAKE USE OF THAT PARAGRAPH .

5 IN THE CONTEXT OF ARTICLE 177 , WHOSE PURPOSE IS TO ENSURE THAT COMMUNITY LAW IS INTERPRETED AND APPLIED IN A UNIFORM MANNER IN ALL THE MEMBER STATES , THE PARTICULAR OBJECTIVE OF THE THIRD PARAGRAPH IS TO PREVENT A BODY OF NATIONAL CASE-LAW NOT IN ACCORD WITH THE RULES OF COMMUNITY LAW FROM COMING INTO EXISTENCE IN ANY MEMBER STATE . THE REQUIREMENTS ARISING FROM THAT PURPOSE ARE OBSERVED AS REGARDS SUMMARY AND URGENT PROCEEDINGS , SUCH AS THE PROCEEDINGS IN THE PRESENT CASE , RELATING TO INTERIM MEASURES , WHERE AN ORDINARY MAIN ACTION , PERMITTING THE RE-EXAMINATION OF ANY QUESTION OF LAW PROVISIONALLY DECIDED IN THE SUMMARY PROCEEDINGS , MUST BE INSTITUTED , EITHER IN ALL CIRCUMSTANCES , OR WHEN THE UNSUCCESSFUL PARTY SO REQUIRES . IN THESE CIRCUMSTANCES THE SPECIFIC OBJECTIVE UNDERLYING THE THIRD PARAGRAPH OF ARTICLE 177 IS PRESERVED BY REASON OF THE FACT THAT THE OBLIGATION TO REFER PRELIMINARY QUESTIONS TO THE COURT APPLIES WITHIN THE CONTEXT OF THE MAIN ACTION .

6 THUS THE ANSWER TO THE QUESTION REFERRED MUST BE THAT THE THIRD PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY MUST BE INTERPRETED AS MEANING THAT A NATIONAL COURT OR TRIBUNAL IS NOT REQUIRED TO REFER TO THE COURT A QUESTION OF INTERPRETATION OR OF VALIDITY MENTIONED IN THAT ARTICLE WHEN THE QUESTION IS RAISED IN INTERLOCUTORY PROCEEDINGS FOR AN INTERIM ORDER ( EINSTWEILIGE VERFUGUNG ), EVEN WHERE NO JUDICIAL REMEDY IS AVAILABLE AGAINST THE DECISION TO BE TAKEN IN THE CONTEXT OF THOSE PROCEEDINGS PROVIDED THAT EACH OF THE PARTIES IS ENTITLED TO INSTITUTE PROCEEDINGS OR TO REQUIRE PROCEEDINGS TO BE INSTITUTED ON THE SUBSTANCE OF THE CASE AND THAT DURING SUCH PROCEEDINGS THE QUESTION PROVISIONALLY DECIDED IN THE SUMMARY PROCEEDINGS MAY BE RE-EXAMINED AND MAY BE THE SUBJECT OF A REFERENCE TO THE COURT UNDER ARTICLE 177 .

7 THE OBERLANDESGERICHT HAS ASKED THE COURT TO RULE ON THE SECOND AND THIRD QUESTIONS ONLY IN THE CASE OF AN AFFIRMATIVE ANSWER TO THE FIRST QUESTION .

SINCE THAT QUESTION HAS BEEN ANSWERED IN THE NEGATIVE , THE OTHER QUESTIONS DO NOT NEED TO BE ANSWERED IN THE PRESENT CASE .

COSTS

8 THE COSTS INCURRED BY THE GOVERNMENT OF THE FRENCH REPUBLIC , THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY , THE GOVERNMENT OF THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE OBERLANDESGERICHT KARLSRUHE BY ORDER OF 14 OCTOBER 1976 , HEREBY RULES :

THE THIRD PARAGRAPH OF ARTICLE 177 OF THE EEC TREATY MUST BE INTERPRETED AS MEANING THAT A NATIONAL COURT OR TRIBUNAL IS NOT REQUIRED TO REFER TO THE COURT A QUESTION OF INTERPRETATION OR OF VALIDITY MENTIONED IN THAT ARTICLE WHEN THE QUESTION IS RAISED IN INTERLOCUTORY PROCEEDINGS FOR AN INTERIM ORDER ( EINSTWEILIGE VERFUGUNG ), EVEN WHERE NO JUDICIAL REMEDY IS AVAILABLE AGAINST THE DECISION TO BE TAKEN IN THE CONTEXT OF THOSE PROCEEDINGS , PROVIDED THAT EACH OF THE PARTIES IS ENTITLED TO INSTITUTE PROCEEDINGS OR TO REQUIRE PROCEEDINGS TO BE INSTITUTED ON THE SUBSTANCE OF THE CASE AND THAT DURING SUCH PROCEEDINGS THE QUESTION PROVISIONALLY DECIDED IN THE SUMMARY PROCEEDINGS MAY BE RE-EXAMINED AND MAY BE THE SUBJECT OF A REFERENCE TO THE COURT UNDER ARTICLE 177 .