Mr Justice Richards' Judgement
The requirement of identicality
- I accept that the requirement of manufacture according to the same formulation, without the qualification for which MAFF contends, could facilitate the creation of obstacles to parallel imports. My attention was drawn to a Commission decision of 22 June 1993 under what was then Article 85 of the EC Treaty in relation of Zera/Montedison, where it was found that the purpose of marketing a different formulation of a pesticide in one Member State as compared with others was to prevent parallel imports. The possibility of abuse is not, however, a good reason for departing from the plain language of ECJ’s judgement. Separate powers exist under the competition rules for tackling any such abuse in practice.
-Extract ends here
Here Mr Justice Richards seems to forget that
- the case was referred to the ECJ as a commercial litigation pertaining to the free movement of goods
- the ECJ answered specific questions relating to this litigation
- the directive states that the free movement of goods is one of its prime objective
- the ECJ relays this objective
- the ECJ, and especially because it restates this objective, clearly states what is constitutive of the identical nature
the ECJ is constant in its judgements, Zera/Montedison exemplifies the position of the Court specifically in the context of plant protection as in the matter at hand.