BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
Court of Justice of the European Communities (including Court of First Instance Decisions) |
||
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> AstraZeneca (Approximation of laws) [2003] EUECJ C-223/01 (16 October 2003) URL: http://www.bailii.org/eu/cases/EUECJ/2003/C22301.html Cite as: [2003] ECR I-11809, [2003] EUECJ C-223/01, [2003] EUECJ C-223/1 |
[New search] [Help]
JUDGMENT OF THE COURT (Sixth Chamber)
16 October 2003 (1)
(Medicinal products - Marketing authorisation of a generic medicinal product - Withdrawal of the marketing authorisation of the reference medicinal product - Abridged procedure)
In Case C-223/01,
REFERENCE to the Court under Article 234 EC by the Østre Landsret (Denmark) for a preliminary ruling in the proceedings pending before that court between
AstraZeneca A/S
and
Lægemiddelstyrelsen,
participant:
Generics (UK) Ltd,
on the interpretation of Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products (OJ, English Special Edition 1965-1966, p. 20), as amended by Council Directive 93/39/EEC of 14 June 1993 (OJ 1993 L 214, p. 22),
THE COURT (Sixth Chamber),
composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen, C. Gulmann (Rapporteur), N. Colneric and J.N. Cunha Rodrigues, Judges,
Advocate General: F.G. Jacobs,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
- AstraZeneca A/S, by J. Rothe, advokat, instructed by I. Dodds-Smith, solicitor,
- Generics (UK) Ltd, by N. Lindgreen, advokat, instructed by S. Kon, solicitor,
- the Lægemiddelstyrelsen and the Danish Government, by J. Molde, acting as Agent, and P. Biering, advokat,
- the Netherlands Government, by H.G. Sevenster, acting as Agent,
- the Norwegian Government, by F. Sejersted, acting as Agent,
- the Commission of the European Communities, by H.C. Støvlbæk, acting as Agent,
- the EFTA Surveillance Authority, by E. Wright, acting as Agent,
having regard to the Report for the Hearing,
after hearing the oral observations of AstraZeneca A/S, Generics (UK) Ltd, the Lægemiddelstyrelsen and the Danish Government, the Norwegian Government, the Commission and the EFTA Surveillance Authority at the hearing on 10 October 2002,
after hearing the Opinion of the Advocate General at the sitting on 23 January 2003,
gives the following
Legal background
Community law
In order to obtain an authorisation to place a medicinal product on the market as provided for in Article 3, the person responsible for placing that product on the market shall make application to the competent authority of the Member State concerned.
...
The application shall be accompanied by the following particulars and documents:
...
8. Results of:
- physico-chemical, biological or microbiological tests,
- pharmacological and toxicological tests,
- clinical trials.
However, and without prejudice to the law relating to the protection of industrial and commercial property:
(a) The applicant shall not be required to provide the results of pharmacological and toxicological tests or the results of clinical trials if he can demonstrate:
(i) either ... ;
(ii) or ... ;
(iii) or that the medicinal product is essentially similar to a product which has been authorised within the Community, in accordance with Community provisions in force, for not less than six years and is marketed in the Member State for which the application is made; this period shall be extended to 10 years in the case of high-technology medicinal products within the meaning of Part A in the Annex to Directive 87/22/EEC ... or of a medicinal product within the meaning of Part B in the Annex to that Directive for which the procedure laid down in Article 2 thereof has been followed; furthermore, a Member State may also extend this period to 10 years by a single Decision covering all the products marketed on its territory where it considers this necessary in the interest of public health. Member States are at liberty not to apply the abovementioned six-year period beyond the date of expiry of a patent protecting the original product.
...
...
...
11. Copies of any authorisation obtained in another Member State or in a third country to place the relevant medicinal product on the market, together with a list of those Member States in which an application for authorisation submitted in accordance with this Directive is under examination. Copies of the summary of the product characteristics proposed by the applicant in accordance with Article 4a or approved by the competent authorities of the Member State in accordance with Article 4b. Copies of the package leaflet proposed in accordance with Article 6 of Directive 92/27/EEC or approved by the competent authorities of the Member State in accordance with Article 10 of the same Directive. Details of any decision to refuse authorisation, whether in the Community or in a third country, and the reasons for such decision.
This information shall be updated on a regular basis.
National law
Applicants do not need to submit the toxicological, pharmacological and clinical documentation referred to in point 9 of Paragraph 3 if they show that one of the following conditions is satisfied:
...
(3) the medicinal product in respect of which the application is made is essentially identical to a medicinal product which has been approved in the Community, under the Community legislation in force, for at least six years, and marketed in Denmark. ...
The dispute in the main proceedings and the questions referred
(1) In a case where an undertaking applies for marketing authorisation on the basis of an abridged application (simplified procedure) under Article 4, third paragraph, point 8(a)(iii), of the first medicinal products directive (Council Directive 65/65/EEC as subsequently amended) and states that the product for which marketing authorisation is sought is essentially similar to a reference product which has been approved in the Community for the necessary period of time pursuant to the directive, is it necessary and sufficient that the reference product:
(a) at the time of the application has been marketed in the Member State for which the application is made, or
(b) at the time of the application is still being marketed in the Member State for which the application is made, or
(c) is still being marketed at the time of the application and at the time of grant of the marketing authorisation in the Member State for which the application is made?
(2) Does the term marketed in Article 4, third paragraph, point 8(a)(iii), mean that it is sufficient and necessary that there be approval in the form of marketing authorisation for the reference product in the Member State for which the application is made?
(3) If Questions 1(b) or 1(c) are answered in the affirmative, does the first medicinal products directive contain a legal basis for enabling the national authorities to dispense with the requirements in question so that an abridged application can nevertheless be examined as to its substance?
The questions referred
- the medicinal product for which the marketing authorisation is sought is essentially similar to another medicinal product, namely the reference medicinal product;
- the reference medicinal product has been authorised within the Community, in accordance with the Community provisions in force, for at least six or ten years;
- the reference medicinal product is marketed in the Member State for which the application is made.
Der Antragsteller ist nicht verpflichtet, die Ergebnisse der pharmakologischen und toxikologischen Versuche oder die Ergebnisse der ärztlichen oder klinischen Versuche vorzulegen, wenn er ... nachweisen kann ... daß das Arzneimittel im wesentlichen einem Erzeugnis gleicht, das ... in dem Mitgliedstaat, in dem der Antrag gestellt wird, in Verkehr gebracht ist.
Le demandeur n'est pas tenu de fournir les résultats des essais pharmacologiques et toxicologiques ni les résultats des essais cliniques s'il peut démontrer ... que le médicament est essentiellement similaire à un produit ... commercialisé dans l'État membre concerné par la demande.
The applicant shall not be required to provide the results of pharmacological and toxicological tests or the results of clinical trials if he can demonstrate ... that the medicinal product is essentially similar to a product which ... is marketed in the Member State for which the application is made.
Costs
59. The costs incurred by the Danish, Netherlands and Norwegian Governments, the Commission and the EFTA Surveillance Authority, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Sixth Chamber),
in answer to the questions referred to it by the Østre Landsret by order of 23 May 2001, amended by order of 6 June 2002, hereby rules:
1. On a proper construction of point 8(a)(iii) of the third paragraph of Article 4 of Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by Law, Regulation or Administrative Action relating to medicinal products, as amended by Council Directive 93/39/EEC of 14 June 1993, product ... marketed refers to a medicinal product which has been granted a marketing authorisation in the Member State concerned.
2. In order for an application for marketing authorisation of a generic medicinal product to be dealt with by way of the abridged procedure provided for in point 8(a)(iii) of the third paragraph of Article 4 of Directive 65/65, as amended, it is necessary and sufficient that the marketing authorisation of the reference medicinal product be in force in the Member State concerned on the date of that application.
Puissochet
ColnericCunha Rodrigues
|
Delivered in open court in Luxembourg on 16 October 2003.
R. Grass V. Skouris
Registrar President
1: Language of the case: Danish.