European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Among all the reasons States may invoke to restrict trade between Member States, those based on the protection of industrial and commercial property are obviously the most important from an economic point of view.
Exclusive rights, industrial and commercial property rights are also rights established at national level and therefore likely to create an obstacle to the free movement of goods within  …

Context 

Among all the reasons States may invoke to restrict trade between Member States, those based on the protection of industrial and commercial property are obviously the most important from an economic point of view.

Exclusive rights, industrial and commercial property rights are also rights established at national level and therefore likely to create an obstacle to the free movement of goods within the EU.

The EU authorities first resorted only to Articles 101 and 102 TFEU to ascertain whether national intellectual property laws were compatible with European law but, since the Sirena judgment , the Court has underlined that the influence of EU law on intellectual property rights, whether based on the principle of free movement or on Articles 101 and 102 TFEU , has the same basis: “Article 36, although it appears in the Chapter of the treaty dealing with quantitative restrictions on trade between Member States, is based on a principle equally applicable to the question of competition, in the sense that even if the rights recognized by the legislation of a Member State on the subject of industrial and commercial property are not affected, so far as their existence is concerned, by Articles 85 and 86 [now Articles 101 and 102] of the treaty, their exercise may still fall under the prohibitions imposed by those provisions”. Subsequently, in the Deutsche Grammophon case , the Court held that, in the event that the exercise of an intellectual property right did not exhibit those elements of contract or concerted practice referred to in Article 101 TFEU, it would be necessary to consider whether the exercise of the right in question was compatible with other provisions of the Treaty, in particular those relating to the free movement of goods. Articles 101 and 102 TFEU therefore no longer represent the exclusive bases of European jurisdiction in this matter and the European rules on free movement of goods apply subsidiarily insofar as, like the competition rules, they pursue the same goal of merging the national markets into a single market. Thus, the proprietor of a trade mark in all the Member States may prevent the sale of products bearing the same trade mark coming from a non-Member State without affecting the free movement of goods within the meaning of Article 34 TFEU, provided that the exercise of the trade market right does not manifest itself as the result of an agreement or of concerted practices which have as their object or effect the partitioning of the internal market . Likewise, where the exercise of a trade mark right is lawful in accordance with Article 36 TFEU, such exercise is not contrary to Article 102 TFEU on the sole ground that it is the act of an undertaking in a dominant position .

Within the framework of competition law, the exercise of a right is unlawful where it is anticompetitive: the concepts of agreement and abuse of dominant position are sufficient to fix the limits of control. By contrast, for intellectual property rights naturally conferring exclusive rights, the EU authorities have been led to introduce additional criteria to distinguish between lawful and unlawful conduct. The concepts of specific subject-matter  and essential function  of the intellectual property right have thus made an appearance in the case law and have made it possible to combine exclusive rights and the principle of free movement: only the prerogatives of the proprietor which fall within the scope of the specific object of the intellectual property right and correspond to its essential function are considered lawful in light of Article 36 TFEU.

The prohibition of restrictions on the free movement of goods therefore indirectly results in defining the content of the various intellectual property rights and the prerogatives of their owners. The principles laid down by the courts have widely inspired the harmonization of national laws regarding trade marks  and designs and models . The proprietors of intellectual property rights also have the possibility of protecting their rights at EU level thanks to the European Union trade mark  or Community designs and models . After years of discussions between Member States, the European Parliament and Council eventually adopted Regulation No 1257/2012 on unitary patent protection. Nevertheless the implementation of the regulation will only be effective after ratification by all the Member States of the Agreement on a Unified Patent Court responsible for arbitrating disputes in matters of unitary patent protection.

Case 40/70 Sirena v Eda [1971] ECR 69, LawLex200400002879JBJ.

Which respectively prohibit restrictive agreements and abuse of a dominant position. On those concepts, see L. VOGEL, European Competition Law, LawLex/Bruylant, 2015.

Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs or models (OJ L 3 of 5 January 2002, p. 1).

Case 78/70 Deutsche Grammophon v Metro SB [1971] ECR 487, LawLex200400002881JBJ. See, also, Case 192/73 Van Zuylen v Hag AG [1974] ECR 731, LawLex200400003457JBJ.

Case 51/75 EMI Records v CBS United Kingdom [1976] ECR 811, LawLex200400002893JBJ, Case 96/75 EMI Records v CBS Schallplatten [1976] ECR 913, LawLex200400002895JBJ and Case 86/75 EMI Records v CBS Grammofon [1976] ECR 871, LawLex200400002898JBJ.

Case 102/77 Hoffman-La Roche v Centrafarm [1978] ECR 1139, LawLex200400002972JBJ.

The concept appeared in the Deutsche Grammophon judgment in which the Court assessed for the first time an intellectual property right in relation to the principle of free movement of goods.

Case 119/75 Terrapin [1976] ECR 1039 LawLex200300003019JBJ, termed as "basic" function in this decision.

Directive No 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks (OJ L 336 of 23 Decmeber 2015,), repealing Directive No 2008/95 of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ L 299 of 8 November 2008, p. 25), which replaced Directive No 89/104 of 21 December 1988 (OJ L 40 of 11 February 1989, p. 1).

Directive No 98/71 of 13 October 1998 on the legal protection of designs or models (OJ L 289 of 28 October 1998 p. 28 to 35).

Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ L 78 of 24 March 2009, 1), as amended by Regulation (EU) No 2015/2424 of 16 December 2015, which repealed Regulation No 40/94 of 21 December 1993 (OJ L 11 of 14 January 1994, p. 1).

European Business Law

53. Context

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

53. Context

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise