Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. By a judgment delivered on 12 December 1985 the House of Lords has asked this Court to deliver a preliminary ruling on whether certain provisions of British patent law are compatible with the principles laid down by the EEC Treaty on the free movement of goods.

2. I will now turn to the facts of the case. On 15 September 1967, Allen and Hanburys Ltd, a pharmaceutical laboratory which is a subsidiary of Glaxo Operations UK Ltd, which in turn is owned by the multinational Glaxo Holdings PLC, obtained a patent under the Patents Act 1949 for salbutamol, a drug which is particularly effective in the treatment of asthma.

3. The parties to the main proceedings, the United Kingdom, and the Commission of the European Communities have presented written observations and oral argument in the proceedings before this Court.

4. It is trite law that the provisions of the Treaty on the free movement of goods, in particular Article 30, preclude restrictions on imports and measures having equivalent effect, that is to say all national provisions capable of hindering directly or indirectly, actually or potentially, intra-Community trade. Equally, it scarcely needs saying that such restrictions and measures are lawful under Article 36 in so far as they are justified on certain grounds, including the protection of industrial and commercial property.

5. In the light of the foregoing it is an easy matter to resolve the problem raised by the second question. If, during the extension of the term of a new existing patent, any person is entitled to exploit the invention in question as he sees fit, it is obvious that, leaving aside the question of infringement, the national authorities cannot make the grant of licences subject to terms that are likely to affect imports of goods from another Member State. Apart from denying importers alone the right to exploit the invention, such terms would ultimately act exclusively against products originating in the rest of the Community; they would thus in effect constitute a restriction on intra-Community trade and as such be contrary to the prohibition laid down in Article 30 of the Treaty. Once that conclusion is established, it is for the national authorities to determine precisely what means are most appropriate to ensure that the licences are granted in a manner compatible with Community law.

6. On the basis of the foregoing considerations I propose that the Court should reply as follows to the questions referred to it by the House of Lords by judgment of 12 December 1985 in the proceedings brought by Allen and Hanburys Ltd against Generics (UK) Ltd:

1 Translated from the Italian