Intellectual Property Under the Charter: Are the Court's Scales Properly Calibrated?

54 Common Market Law Review (2017) 517

53 Pages Posted: 27 Sep 2017 Last revised: 30 Jun 2019

See all articles by Peter Oliver

Peter Oliver

Université Libre de Bruxelles (ULB) - Institute of European Studies; Bingham Centre for the Rule of Law

Christopher Stothers

University College London - Faculty of Laws

Date Written: February 25, 2017

Abstract

Unusually, the Charter of Fundamental Rights of the EU contains a provision (Art. 17(2)) expressly recognizing the right to the protection of intellectual property.With the notable exception of Luksan, the ECJ case law on this provision relates to cases in which the right to IP is pitted against other Charter rights. The Court has been driven to seek a “fair balance” between the rights at stake, an exercise which can only be carried out on a case-by-case basis, thus engendering considerable legal uncertainty. What is more, in several cases the Court has given more limited guidance than it might have done; the recent ruling in McFadden is encouraging, however. But the Court by no means bears sole responsibility for this legal uncertainty: courts are ill equipped to solve such complex policy issues; and, had it not been for the numerous gaps and ambiguities in the relevant EU legislation, the Court would not have had to step in so frequently.

Keywords: EU Law, European Convention of Human Rights, Fundamental Rights, Intellectual Property

Suggested Citation

Oliver, Peter J and Stothers, Christopher, Intellectual Property Under the Charter: Are the Court's Scales Properly Calibrated? (February 25, 2017). 54 Common Market Law Review (2017) 517 . Available at SSRN: https://ssrn.com/abstract=3042530

Peter J Oliver (Contact Author)

Université Libre de Bruxelles (ULB) - Institute of European Studies ( email )

Institut d'Etudes européennes
Av. F.D. Roosevelt, 39
Ixelles-Bruxelles, 1050
Belgium

HOME PAGE: http://https://www.iee-ulb.eu/en/

Bingham Centre for the Rule of Law ( email )

BIICL, Charles Clore House
17 Russell Square
London, WC1B 5JP
United Kingdom

Christopher Stothers

University College London - Faculty of Laws ( email )

Gower St
London WC1E OEG, WC1E 6BT
United Kingdom

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