In the European Union, each member state has an exclusive right to define its health care policy, including prices of the drugs sold in its territory. This leads to significant differences in the prices of pharmaceuticals across the EU and creates business opportunities for parallel importers who can buy drugs in those countries where they are cheaper and import them to the more expensive ones. In the European Union, so long as a pharmaceutical manufacturer has placed a good on the market voluntarily, the principle of free movement of goods and doctrine of exhaustion allows parallel importers to trade goods across borders without the consent of the producer. However, exhaustion of intellectual property rights in the European Union has important limitations. National and EU disclosure regulations, packaging requirements, language rules, and consumer preferences may require that pharmaceuticals are properly repackaged and relabelled before being placed on the new market of a importing member state. According to Article 15(2) of Directive 2015/2436 the trade mark proprietor is allowed, if legitimate reasons exist, to oppose further commercialisation of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market. However, proprietor’s opposition to repackaging cannot contribute to an artificial partitioning of the markets between Member States. Therefore European Court of Justice set out list of conditions (the BMS conditions) to be respected by the parallel importer when repackaging an imported pharmaceutical product. When deciding on repackaging cases the ECJ has to strike a balance between the principle of free movement of goods and the protection of trademark rights.
The purpose of this master thesis is to analyse list of conditions, set out by European Court of Justice (the BMS conditions), to be respected by the parallel importer when repackaging an imported pharmaceutical product.
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