C-56/87

OPINION OF MR DARMON — CASE 56/87

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 16 March 1988 *

Mr President, 4. Effect is given to those objectives by the Members of the Court, provisions of paragraph B.4.1. of the decision of the Economic Planning Committee, which provides that the costs of research to be taken into account, which 1. In these proceedings, the Commission is normally must not exceed 10% of the asking the Court to declare that the Italian industrial product, may be increased to 12% Republic has failed to fulfil its obligations as regards research having led to under Article 30 of the Treaty in regard to considerable investment in the national the fixing of prices for pharmaceutical territory. Similarly, paragraph B.4.2. products. Its essential complaint is that the provides that pharmaceutical specialities method adopted by the defendant Member considered to be particularly original and State is based on criteria specifically related innovative are to benefit from a rate of to the situation in Italy which expressly increase of 20 % in normal cases and 40 % favour national products and thus make the in the case of products which are the result marketing of imported products more of research carried out entirely on national difficult. territory.

2. The Italian Republic has indicated that it 5. Finally, the method adopted takes no intends to adopt, as soon as possible, account of the special position of imported amendments designed to avoid any products. suspicion of discrimination against imported products.

1 — My emphasis. 4 — Article 2 (3) (e).

COMMISSION v ITALY

7. Moreover, although the Court's products on the market, those criteria [for judgment in Roussel 5left intact the possi­ the fixing of prices] must take due account bility for Member States to combat of the ex-refinery prices of all traders, inflation, they may do so only by means of regardless of the origin of the goods.' 'measures which do not place imported medicines at a disadvantage'. Although the 7 Court's judgments in Tasca 6 and Danis concerned price rules applicable without 8. In this case the system which has been set distinction, unlike the rules at issue here, the up expressly favours national products, Court classified such rules as quantitative which benefit from the fact that account is restrictions once they made the marketing taken only of research carried out on Italian of imported products either impossible or territory, entailing an obvious disadvantage more difficult than that of national for imported medicines. Moreover, the products. In its judgment in Cullet, 8 the absence of any reference to the costs and Court held that: charges inherent in importation and to cost components in the other Member States '. . . in order to avoid any disadvantageous cannot but reinforce that discriminatory effect on the distribution of imported situation.

9. I therefore propose that the Court should declare that by adopting and applying a method for fixing the prices of pharmaceutical products taking account of factors specific to national products in such a way as to favour the latter and disregarding the situation of imported products, the Italian Republic has failed to fulfil its obligations under Article 30 of the Treaty. I propose that the Court should order the Italian Republic to pay the costs.