Supreme Court Acknowledges Objective Justification For Parallel Importation Of Pharmaceuticals

The Supreme Court (Hof van Cassatie/Cour de Cassation) recently handed down two judgments on the repackaging of parallel imported pharmaceuticals. The judgments, both issued on 7 November 2016, clarify the requirement for an "objective justification" under the so-called "BMS"-criteria.

The BMS-criteria were developed by the Court of Justice of the European Union ("ECJ") in an attempt to balance the principle of free movement of goods with the protection of trade mark rights and public health considerations in the case of parallel importation of pharmaceuticals from one Member State into another. The ECJ held in Bristol-Myers Squibb (Case C-427/93) that parallel imported products could be repackaged (i) if repackaging is objectively necessary to market the product in the country of importation; (ii) if the repackaging does not affect the original condition of the product inside the packaging; (iii) if the new packaging clearly states who repackaged the product