IP Law Reform and the Treaty of Lisbon
74 Pages Posted: 11 Mar 2009 Last revised: 12 Jan 2011
Date Written: September 1, 2008
Regardless of whether, one day, the Treaty of Lisbon will enter into force, its rules provide a point of reference to determine which part of primary legislation is in need of reforms. This paper focuses on points considered relevant to the further development of intellectual property and competition law. The paper assembles a multitude of assertions and findings on changes to rules of primary law that are relevant for intellectual property. To state an example, as regards fundamental rights protection, the Treaty of Lisbon declares the Charter of Fundamental Rights to be binding. However, the Charter is not integrated in either Treaty. Consequently, changes to the Charter are not subject to the procedure for primary legislation and doubts remain as to its supremacy in relation to national law. We may therefore see two classes of fundamental rights emerge. The coexistence of Charter rights with general principles of European law, ECHR rights and national fundamental rights raises further questions; as does the Protocol on the Application of the Charter to Poland and to the United Kingdom. The right to (intellectual) property as contained in Art. 17 of the Charter matches the protection under the ECHR. However, Art. 17 deviates from the wording of the ECHR insofar as deprivation in the public interest is by all means subject to fair compensation.
Further, the Treaty of Lisbon transcribes the basic regulations on objectives and values of the TCE to the TEU. With regard to intellectual property, the references to the promotion of "scientific and technological advance" and Europe's cultural heritage and diversity - the tension between unity and diversity remains - are of importance. The scientific and technological advance is to be put on a firmer footing.
In the field of competences, for example, shared competence applies to harmonization measures concerning the internal market - relevant to intellectual property rights, hence applying the principle of subsidiarity. The new competence for the creation of European intellectual property titles can be categorized as an internal market competence and hence as a shared competence, but without entailing the loss of competence for national legislation. It is also submitted that the new competence for the approximation of criminal laws to implement Union policies is of particular relevance to intellectual property and competition law. On the contrary, the relevance of the facts that the Union's exclusive competence for competition is now explicitly stated and that "free and undistorted competition" has been removed from the catalogue of objectives, remains unanswered up to now. The competence of the Union to conclude agreements on trade-related aspects of intellectual property rights will form part of the common commercial policy and thus will be an exclusive competence of the Union. Agreements on intellectual property not falling within the expanded scope of the common commercial policy definition may be affected by the codification of the ECJ's AETR doctrine on implicit exclusive external EC competences. Moreover, the Treaty invigorates the subsidiary principle's implementation by giving national parliaments ex-ante control and by linking it to the local and regional level. It also clarifies the rules on the categorization and exercise of competences (e.g. the principle of proportionality).
Unlike the TCE, the Treaty of Lisbon essentially keeps the Union's legal instruments, while modifying some of them significantly, in some cases even exceeding the TCE. The modifications of the general legal instruments are of particular relevance to intellectual property and competition law as these are most used for the implementation of the Union's policy in these areas.
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Keywords: European Union, Treaty of Lisbon, intellectual property, competition, antitrust, copyright, common commercial policy, institutional reform, constitutional process, enforcement, harmonization, fundamental rights
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