Brussels, 18th October
In its initial infringement procedure, the Commission has argued that by not granting licensed parallel importers time for clearing their stock after the voluntary withdrawal of the authorization of the reference product by the manufacturer Germany has infringed the requirements of free movement of goods (Article 28 to 30 of the EC Treaty). By a judgement of July 2005 (Case C-114/04) the European Court of Justice confirmed the position of the Commission.
As a reaction to the judgement Germany has introduced new rules governing the parallel import for plant protection products improving legal certainty and legal clarity. Marketability of a product will come to an end one year after the revocation of the authorisation of the reference product.
The EC Treaty requires the Commission to ensure that EU law is correctly implemented. The Commission has been granted powers to do so under the infringement procedure laid down in Articles 226 and 228 of the Treaty. The main purpose of this procedure is not to bring infringement proceedings before the Court of Justice, but to bring the Member State back into line with EU law during a pre-litigation phase.
The main steps of the pre-litigation procedure are:
1. Letter of formal notice
The letter of formal notice represents the first stage in the pre-litigation procedure, during which the Commission requests a Member State to submit its observations on an identified problem regarding the application of Community law within a given time limit. The Commission does not make an accusation but offers the Member State the opportunity to give its explanation regarding an alleged infringement. The Member States is given two months to reply.
2. Reasoned opinion
The reasoned opinion gives a detailed statement, based on the letter of formal notice, of the reasons that have led the Commission to conclude that the Member State concerned has failed to fulfil one or more of its obligations under the Treaty or other EU legislation. The Member State has two months to reply.
3. Decision to refer a case to the Court of Justice
Referral to the Court of Justice of the European Communities opens the litigation procedure.