Synthon B.V. v. Merz Pharma GmbH & Co KG, Opinion of A-G Mengozzi, 31 March 2011, Case C-195/09
"On the basis of all of the foregoing considerations, I propose that the Court should give the following answers to the questions submitted by the High Court of Justice (Chancery Division):
'Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, must be interpreted, pursuant to Article 2 thereof, as meaning that products placed on the market as medicinal products in Community territory before obtaining a marketing authorisation in accordance with Council Directive 65/65/EEC on the approximation of the provisions laid down by law, regulation or administrative action relating to proprietary medicinal products or with Council Directive 81/851/EEC of 28 September 1981 on the approximation of the laws of the Member States relating to veterinary medicinal products do not fall within the scope of the regulation.
Supplementary protection certificates granted for such products must be deemed to be invalid.’
Should the Court not adopt that solution, I propose that it should give the following answers to the first and second questions submitted by the High Court of Justice (Chancery Division):