Order made on 17 July 2015
Merck Canada Inc.
Merck Sharp & Dohme B.V.
MSD Danmark ApS
Request for a preliminary ruling not granted
Orifarm A/S was engaged in parallel import of a pharmaceutical product to Denmark from Poland where it had originally been marketed. The issue in this case was whether special conditions for Poland's accession to the EU provide for an exception to the general principle of exhaustion, with the effect that Orifarm A/S has infringed the rights of Merck Canada Inc. and others to the pharmaceutical product.
During the pre-trial stage before the Supreme Court, Orifarm A/S requested that questions be referred to the EU Court of Justice regarding the interpretation of, among other things, the special conditions, cf. Annex IV to the Treaty Establishing the European Community: Part Three, Section I, Free movement of goods, as rectified by the Second Procés-Verbal of Rectification of 16 April 2003, Section 8,
Council Regulation No 1768/1992 concerning a supplementary protection certificate and Regulation No 1901/2006 of the European Parliament and of the Council on medicinal products for paediatric use.
According to the Supreme Court's preliminary assessment, there was no doubt as to the interpretation of the cited EC provisions or the cited EU case law that justified referring questions to the EU Court of Justice. Accordingly, the Supreme Court did not grant the request.