The facts in this case (link here ) are as follows.
Roche markets a medicinal product called "Xeloda" in Estonia. The active substance is capecitabine. Roche has a basic patent granted on 15 April 1998. Xeloda was registered for the first time in Estonia on 8 June 2001 and was granted an SPC by the Estonian Patent Office.
Accord obtained an Estonian marketing authorisation (MA) for a generic version of the product. Roche brought an action before the Estonian district court seeking an injunction against Accord to prevent infringement of their rights until SPC expiry, which Roche calculated to be 8 June 2016.
Accord considered that the SPC was not valid because the first MA for Xeloda had been granted in Switzerland in 1998, so they said the maximum 15 years of protection actually expired in 2013.
Roche countered that the SPC duration should be 15 years from the date of the Estonian MA. They argued that, as the SPC was issued at a time when Estonia was not a member of the European Union, then only Estonian law applied, according to which the duration of validity of the SPC depended not on the grant of the first MA in the European Union, but the grant of that authorisation in Estonia.
The Estonian Supreme Court then referred the following questions to the ECJ:
"(1) Must Article 21(2) of Regulation No 469/2009 … be interpreted as shortening the duration of [an SPC] issued in a Member State which was issued under national law before the accession of the State in question to the European Union and whose duration in relation to an active substance, as stated in the [SPC], would be longer than 15 years from the time when the first [MA] in the Union was granted for a medicinal product consisting of the active substance or containing it?
(2) If the answer to the first question is in the affirmative, is Article 21(2) of Regulation No 469/2009 … compatible with European Union law, in particular the general principles of European Union law on the protection of acquired rights, the principle of the prohibition of retroactive effect of law, and the Charter …?"