Court of Justice 6 June 1996, C-267/95 and C-268/95 (Merck & Co. Inc., Merck Sharp & Dohme Ltd and Merck Sharp & Dohme International Services BV v Primecrown Ltd, Ketan Himatlal Mehta, Bharat Himatlal Mehta and Necessity Supplies Ltd and Beecham Group plc v Europharm of Worthing Ltd.)

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In joined Cases C-267/95 and C-268/95, Advocate General Fennelly opined on two distinct issues arising from references by the UK High Court concerning parallel imports of patented pharmaceuticals from Spain and Portugal: first, the expiry dates of the transitional derogations under Articles 47 and 209 of the Act of Accession, which he concluded terminated on 7 October 1995 for Spain and 1 January 1995 for Portugal, calculated as the third anniversary of each State's introduction of pharmaceutical product patentability through EPC accession; second, and more fundamentally, he recommended that the Court depart from its 1981 ruling in Merck v Stephar (Case 187/80), opining that the Community exhaustion doctrine should not apply where a patentee markets a product in a Member State affording no patent protection, as the specific subject-matter of the patent—the exclusive right of first marketing free from unauthorized competition—cannot logically be exhausted in the absence of parallel patent rights. The Advocate General further opined that any such departure from Merck v Stephar should be limited in temporal effect to operate only prospectively from the date of the Court's judgment, so as not to render unlawful parallel trade conducted in reliance on the existing rule.AI