The Impact of the WTO Agreement on TRIPs (Trade-Related Aspects of Intellectual Property Rights) on EC Law: A Challenge to Regionalism

Abstract

This study first examines the underlying rationale for TRIPs, and its two fundamental principles, the National Treatment principle and the Most-Favored-Nation principle, and evaluate their impact on EC law. The latter in particular poses an imminent danger to regional agreements. The interface between patent law and competition law has been selected to elucidate this impact. It demonstrates the conflict between TRIPs and EC single market integration, regarded by the European Court of Justice as a major objective of EC law that has so far overshadowed the development of EC competition law. The study concludes that the "Chinese" wall, which the Court of Justice has been helping to build around the EC, should tumble.

There is one way to delay this process, or even prevent it from taking place. If the provisions of TRIPs are denied direct effect, then individuals will not be able to realize the rights granted to them under this agreement. A middle-way approach, applying a rule of interpretation, and perhaps even a rule of presumption that would ensure compatibility of national and regional legislation with TRIPs, may allow for a cautious step-by-step assessment. However, it would offer no easier solutions to weighty issues, such as the maintenance of regional "exhaustion of rights".