Judgment_paragraph 3. · Centrafarm BV and Adriaan de Peijper v Sterling Drug Inc (15/74)

3.If it is supposed, on the other hand, that the exception laid down at Article 36 does not apply to these provisions, the question arises (a question which was not postulated in the Deutsche Grammophon case, as the Advocate-General rightly observed) whether Articles 30 et seq. are directly applicable.The company refers in particular to the Judgment of 19 December 1968 (Case 13/68, Salgoil, Rec. 1968, p. 661).Since the transitional period has ended the question arises, whether Article 30 and Article 32, second paragraph, first sentence, have become directly applicable as from 1 January 1970.In this connexion the company recalls that in the Deutsche Grammophon case a ‘new’ law was involved, whereas the present case concerns an ‘existing’ law. Article 32, second paragraph, first sentence, which provides that measures having equivalent effect shall be abolished by the end of the transitional period at the latest, clearly constitutes an obligation to be fulfilled, which leaves the Member States a measure of discretionary power. The mere abolition of national provisions on patents allowing parallel imports to be prevented would affect the ‘existence’ of the patents and such abolition could not therefore be decided upon except in conjunction either with the simultaneous elimination of the very great differences existing between patent laws by harmonizing the latter or with the creation of a uniform EEC patent.The company next claims that even the Commission does not seem to have considered it a reasonable proposition that Article 32, second paragraph, first sentence, should become directly applicable at the end of the transitional period. This is made clear by its Directive of 22 December 1969, based upon Article 33 (7) (70/50/EEC, OJ L 13/29).Furthermore, it is often impossible to distinguish cases where Article 30 applies from those covered by Article 100 of the EEC Treaty and since, moreover, the legal provisions which are the subject of Article 100 remain in force until such time as the Council issues a directive, recognition of the direct applicability of Article 30, as from 1 January 1970, would lead to a large measure of legal uncertainty.To deny the direct effect of Article 2, second paragraph, is also in line with the case law of the Bundesverfassungsgericht of Germany when seized of cases where the national legislature has not fulfilled obligations imposed upon it by the Constitution.Finally, the company refers to Article 42 of the Act of Accession, according to which measures having an effect equivalent to quantitative restrictions shall be abolished by 1 January 1975 at the latest; since the company considers it unrealistic to suppose that the Member States will in fact be able to abolish all such measures before 1 January 1975, it would be difficult to require this on pain of automatic abrogation as from that date.

Centrafarm BV and Adriaan de Peijper v Sterling Drug Inc (15/74)

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