Essence of Intellectual Property Rights under Art 17(2) of the EU Charter
forthcoming in German Law Journal (special edition on ‘Essence of Fundamental Rights’ edited by Mark Dawson, Orla Lynskey and Elise Muir)
24 Pages Posted: 7 Jun 2019
Date Written: May 21, 2019
Smoking kills. It is also very costly, which is why many governments try to change the habits of their citizens, including by changing the packaging of the products they buy. Of course, tobacco firms are pushing against such laws. They see their rights, in particular, rights to intellectual property, violated. They argue that such legislative changes take away the essence of their hard-earned IP rights and should not be permissible. They point out that the CJEU is allegedly redefining the ‘essence’ of fundamental rights and its function in the system of limitations and developing a set of core inviolable rights.
How justified are these arguments? The absolute theory of essence says that the essence of rights cannot be interfered with or taken away, including by the legislator. The relative theory of essence, on the other hand, claims that interference with essence is just a more serious interference which is still subject to the typical proportionality analysis. Therefore, the adoption of either of these two theories has profound consequences. What might constitute the essence of intellectual property rights (IP rights)? When are legislators touching upon it? Is the CJEU really advancing a notion of essence that can prevent legislative changes, or at least make them very difficult? The answer to all these questions depends on our understanding of what constitutes the ‘essence’ of intellectual property rights, and what consequences this notion has under Article 17(2) of the EU Charter of Fundamental Rights.
Keywords: Article 17(2), Essence, Human Rights, EU Charter, Balancing, Proportionality, Legislator's Discretion
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