Opinion of Mr Advocate General Van Gerven delivered on 13 December 1991

1 Original language: Dutch.

2 Gazzetta Ufficiale della Repubblica Italiana (GURI) No 189 of 14 August 1939.

3 GURI No 193 of 31 July 1968.

4 GURI No 109 of 26 April 1976.

5 Convention for the European patent for the common market, annexed to the Agreement relating to Community patents, done at Luxembourg on 15 December 1989 (OJ 1989 L 401, p. 1). For the sake of brevity I shall refer in my Opinion only to the provisions of this Convention and not to the identical provisions, which are numbered differendy, of the Convention for the European patent for the common market (Community Patent Convention) signed at Luxembourg on 15 December 1975 (OJ 1976 L 17, p. 1). When the abovementioned Agreement of 15 December 1989 comes into force, it will replace the latter Convention that in fact never came into force for lack of ratification by all the Member States.

6 European patents granted for a Contracting Sute are patents granted on the basis of one single patent application for all or some Contracting States or for one of those States pursuant to the Convention on the Grant of European Patents signed in Munich on 5 October 1973 which came into force on 7 October 1977.

7 Sec OJ 1989 L 401, p. 58.

8 Judgment in Case 434/85 Allen & Hanburys v Generics [1988] ECR 1245.

9 Judgment in Case 113/80 Commission v Ireland [1981] ECR 1625.

10 Sec in particular page 8 of the note of the Ministry of Industry, Trade and Craft Trades annexed to the Italian Permanent Representative's answer to the Commission's letter of formal notice.

11 See in particular point 7.2 of the defence.

12 Judgment in Case 238/87 Volvo v Veng [1988] ECR 6211.

13 Judgment in Case 15/74 Centra/arm v Sterling Drug [1974] ECR 1147.

14 Paragraph 12 of the judgment in Case 35/87 Theţford v Fiamma [1988] ECR 3585. The United Kingdom refers to two other judgments: Case 144/81 Keurkoop v Nancy Kern Gifts [1982] ECR 2853 and Case 341/87 EMI Electrola v Patricia lm-und Export [1989] ECR 79.

15 Judgment of 21 March 1991 in Case C-305/89 Italy v Commission [1991] ECR I-1603.

16 Judgment in Case 182/83 Fearon v Irish Land Commission [1984] ECR 3677.

17 See the judgment of 4 October 1991 in Case C-246/89 Commission v United Kingdom [1991] ECR I-4585, paragraph 12, in conjunction with the Member States' powers regarding registration of ships. See also the judgments in Case 57/86 Greece v Commission [1988] ECR 2855, paragraph 9, and in Case 127/87 Commission v Greece [1988] ECR 3333, paragraph 7, in conjunction with the Member States' powers in monetary matters.

18 Judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837.

19 Judgment in Case 249/81 Commission v Ireland [1982] ECR 4005.

20 Judgment in Case 166/82 Commission v Italy [1984] ECR 459, paragraph 24.

21 Judgment in Case C-10/89 CNL-SUCAL v HAC [1990] ECR I-3711.

22 Cited above, footnote 8.

23 Judgment in Case 187/80 Merck v Stephar and Exler [1981] ECR 2063.

24 Judgment in Case 19/84 Pharmon v Hoechst [1985] ECR 2281.

25 Cited above, footnote 12.

26 Since it is noi in issue here, I can leave open the question whether the grant of a compulsory licence may be justified on one of the other grounds mentioned in the first sentence of Article 36 of the EEC Treaty, for example for reasons of national defence pursuant to the protection of public security under Article 36 (in conjunction with Article 223) of the EEC Treaty. In this connection I would point out that the second sentence of Article 46 of the Community Patent Convention provides that the rule in the first sentence of Article 46 does not apply to compulsory licences granted in the public interest

27 Paris Convention for the protection of industrial property of 20 March 1883, as revised at Brussels on 14 December 1900, at Washington on 2 June 1911, at The Hague on 6 November 1925, at London on 2 June 1934, at Lisbon on 31 October 1958 and at Stockholm on 14 July 1967 (United Nations Treaty Series, Volume 828, No 11851, p. 306).

28 Judgment in Case 121/85 Conegate v H M Customs & Excise [19861 ECR 1007. See also the judgments of the Court of First Instance of 10 July 1991 in Cases T-69/89 Radio Telefis Eireann v Commission [1991] ECR II-485, paragraphs 102, 103 and 104, T-70/89 BBC v Commission [1991] ECR II-535, paragraphs 76, 77 and 78, and T-76/89 Independent Television Publications v Commission [1991] ECR II-575, paragraphs 75, 76 and 77.

29 As regards the Community Patent Convention of 1975, also signed in Luxembourg, see the similar provision in Article 93 of that Convention.

30 Judgment in Case C-200/88 Commission y Grtece [1990] I-4299, paragraph 9.