Abstract
The European Union (EU) has concluded—and still is in the process of negotiating—a number of bilateral trade agreements with extensive provisions on intellectual property rights that partially go beyond what is required by the WTO/TRIPS Agreement (so-called “TRIPS-plus standards”). These agreements include the Economic Partnership Agreement (EPA) with the CARIFORUM States, the Free Trade Agreement with South Korea, the Association Agreement with Central America and the Trade Agreement with Columbia and Peru. There is a general assumption that these agreements only oblige the other contracting parties to change their intellectual property laws, whilst there is no need for the EU to take any implementation measures. This chapter questions this latter assumption by analysing, in particular, the rules of these agreements on criminal sanctions, genetic resources, transfer of technology and competition law and the general principles on the enhancement of sustainable development.
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Notes
- 1.
Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part. Foremost, the EPAs are intended to renew the trade preferences accorded by the EU to states of Africa, the Caribbean and the Pacific (ACP countries) under the former Cotonou Agreement of 2000: Partnership Agreement 2000/483/EC between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part. The Cotonou Agreement was revised in 2010 and now continues to constitute the platform for negotiating individual EPAs with regional groups of ACP countries. The EU-CARIFROUM EPA, which was the first EPA to reach the ratification stage, was initially planned as a blueprint for the following EPAs with the other regional groups of African and Pacific countries. By now, however, it seems that the EU may well abstain from including similar IP chapters in the EPAs with other ACP countries. On the current state of EPA negotiations and implementation see the website of the EU Commission: “Current state of EPA negotiations and implementation”.
- 2.
Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part.
- 3.
Negotiations for this agreement were concluded in May 2010. The agreement was initialled on 22 March 2011. It still needs to be ratified by the parties.
- 4.
Negotiations for this agreement were concluded in March 2012.
- 5.
On the specific IP issues relevant in the negotiations see Centre for the Analysis of Regional Integration. The EU’s intention to include substantive IP obligations in this FTA is facing fierce resistance by India. At the time of the writing of this chapter it is still unclear whether the EU will accept the Indian position according to which the FTA should not include any IP obligations that conflict with the domestic law of India.
- 6.
European Commission (2009).
- 7.
EU Centre in Singapore (2011).
- 8.
European Commission (2011) (information provided after a meeting of the EU Trade Commissioner in Singapore on 15 July 2011).
- 9.
European Commission (2012a).
- 10.
European Commission (2012d).
- 11.
ICTSD (2010).
- 12.
Driven by concerns about rising prices for HIV drugs, public protests arose when a leaked text for the EU-India FTA became known in Malaysia. FTA Malaysia Information (2012).
- 13.
European Commission (2012b).
- 14.
Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union. On the implementation issues arising against the backdrop of the federal system of Canada see De Beer (2012).
- 15.
Article 10.1(b) of the EU-South Korea FTA. In Article 10.1(a), the Agreement also mentions the objective of facilitating the production and commercialisation of innovative and creative products to the Parties. It is interesting to see that the immediate goal of strengthening protection is mentioned after the indirect, more trade-related goal.
- 16.
Biadgleng and Maur (2011).
- 17.
See fn. 1, above.
- 18.
Opinion 1/94 [1994] ECR I-5267, paras 55–71.
- 19.
For an analysis of the legal situation at the time of the conclusion of TRIPS, see Drexl (1996).
- 20.
In this sense Drexl (2010), p. 1344, para 89. The question of whether the concept of “commercial aspects of intellectual property” is identical with the “trade-related aspects” addressed in TRIPS was explicitly left open by Advocate General Kokott in her unpublished Opinion in Case C-13/07 Commission v. Council, para 48. The issue of the case was whether the EU can act without the Member States on the WTO Council in the framework of making a decision on the WTO accession of Vietnam. On this case see also Kokott (2010), p. 114 (maintaining that the EU has only gained exclusive competence for the commercial aspects of intellectual property under the Lisbon Treaty). The question relating to the scope of exclusive competence of the EU for the commercial aspects of intellectual property under the Lisbon Treaty has most recently been referred to the CJEU in the Daiichi Sankyo case (Case C-414/11). In his opinion, delivered on 31 January 2013 (not yet officially reported), Advocate General Cruz Villalón struggled enormously with the answer. By arguing both, namely that the Lisbon Treaty must have broadened the exclusive competence of the EU, on the one hand, and that the concept of the commercial aspects of IP must have some objective meaning that does not cover any IP provision on the sole bases that it is included in a trade agreement, on the other hand, the Advocate General tried to find some middle ground, which, however, would obviously create considerable legal uncertainty. Hence, it will be interesting to see how the CJEU will answer the referral.
- 21.
See Drexl (2010), fn. 20, above, para 91. The last alternative of Article 216(1) TFEU enacts the so-called AETR doctrine; see Case 22/70 Commission v Council [1971] ECR 263, para 16 (“AETR”).
- 22.
Anti-Counterfeiting Trade Agreement concluded between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Federation and the United States of America.
- 23.
Since the European Parliament rejected ACTA in a vote on 4 July 2012 by 478 to 39 votes, with 165 abstentions, it can no longer be assumed that the EU will become a contracting party of ACTA. See European Parliament (2012). Also, since no other signatory party has ratified the agreement, it may well never enter into force. ACTA needs six ratifications to enter into force. The vote of the European Parliament also prevents the EU Member States from joining ACTA.
- 24.
See Grosse Ruse-Khan (2010).
- 25.
Case C-414/11 Daiichi Sankyo, on the exclusive competence of the EU for all provisions of the TRIPS agreements, which has most recently been referred to the CJEU, will have to be considered a precedent also for the assessment of EU competence to conclude IP provisions in bilateral trade agreements. On this case, see also fn. 20, above.
- 26.
See Joined Cases C-300/98 and 392/98 Parfums Christian Dior and Assco Gerüste [2000] ECR I-11307, paras 41–45; Case C-89/99 Schieving-Nijstad [2001] 5851, paras 51–53. Note, however, that at least under the Nice version of the EC Treaty, the former ECJ maintained the power of the Member States to decide on direct effect of TRIPS to the extent that the individual case does not relate to any field in which the European Union has legislated. See C-431/05 Merck Genéricos [2007] ECR I-7001, para 34.
- 27.
Note, however, that this problem is mitigated by the CJEU’s recognising an obligation of the courts in the EU Member States to interpret national law in conformity with TRIPS. See, in particular, Case C-53/96 Hermès [1998] ECR I-3603, para 28; Joined Cases C-300/98 and 392/98 Parfums Christian Dior and Assco Gerüste [2000] ECR I-11307, para 47.
- 28.
Directive 2001/29/EC.
- 29.
The Commission proposal of 10 November 1997 for the Information Society Directive closely followed the conclusion of the WIPO Treaties. The Directive had the objective of enabling the former EC to become a Contracting Party of the Treaties. On the interaction of the legislative process for the Directive and the ratification of the Treaties by the EC see von Lewinski and Walter (2010), paras 11.0.27–11.0.42.
- 30.
So far, the ECJ has constantly aimed to guarantee conformity of EU law with the WIPO copyright treaties by interpreting EU secondary law in conformity with the agreements. See, for instance, Case C-456/06 Peek & Cloppenburg [2008] ECR I-2731, paras 32–35 (regarding the distribution right as provided for in Article 6 of the WIPO Copyright Treaty).
- 31.
See, for instance, Article 145 EU-CARIFORUM EPA; Article 10.18–10.26 EU-South Korea FTA.
- 32.
See Article 139(3) EU-CARIFORUM EPA.
- 33.
Directive 96/9/EC.
- 34.
See Article 10.2(2)(a) EU-South Korea FTA. Similarly, Article 229(3)(a) EU-Central America Association Agreement and Article 196(5)(a) EU-Colombia and Peru Trade Agreement only include “copyright … in databases” on their lists of intellectual property rights.
- 35.
Directive 2004/48/EC.
- 36.
See Amended proposal of the Commission of 26 April 2006 for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights, COM(2006) 168 final. For critical comments on this proposal see Hilty et al. (2006), p. 970. On the Directive see also Gibson (2012). Criminal sanctions for IP infringement are discussed in more general terms by Drexl (2012 b), Griffiths (2012), and Mylly (2012).
- 37.
Article 10.54–10.61 EU-South Korea FTA.
- 38.
Article 61 TRIPS.
- 39.
Article 10.56 EU-South Korea FTA. This rule is highly problematic from an internal EU perspective, given that there are jurisdictions within the EU, such as Germany, that do not recognise criminal liability of legal persons as a matter of principle. An obligation regarding criminal liability of legal persons is also included in Article 23(5) ACTA. However, this provision takes a much more cautious approach by especially taking into account the consistency of such liability with the legal principles governing in the respective contracting state. The provision reads in its first sentence as follows: “Each Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability, which may be criminal, of legal persons for the offences specified in this Article for which the Party provides criminal procedures and penalties”.
- 40.
Article 10.57 EU-South Korea FTA; Article 23(4) ACTA.
- 41.
On the criminal sanctions provisions of ACTA see Grosse Ruse-Khan (2012), pp. 183–188.
- 42.
The fact that the Agreement with Colombia and Peru does not include any provision on criminal sanctions is quite surprising since it contains other substantive TRIPS-plus obligations, such as on data exclusivity protection for pharmaceuticals, that cannot be found in the Association Agreement with Central America.
- 43.
It is all the more surprising that the European Parliament gave its approval to the FTA with South Korea with its rules on aiding and abetting. The Commission proposal on criminal liability was especially criticised for its lack of clarity regarding fundamental concepts of criminal law, including those on aiding and abetting.
- 44.
See Article 150 EU-CARIFORUM EPA.
- 45.
Article 10.40 EU-South Korea FTA.
- 46.
On the law on genetic resources and traditional knowledge in these countries see Bucher (2008).
- 47.
See Medaglia (2006), p. 33. With its Law on Biodiversity of 1998, Costa Rica was a pioneer in this field.
- 48.
Article 229(4) and (5) EU-Central America Association Agreement.
- 49.
von Lewinski (2008).
- 50.
Nagoya Protocol (2010).
- 51.
In contrast, the Swiss Patent Act (§ 49a) contains a clear obligation to provide such information by using the wording “must”.
- 52.
Article 150(3) EU-CARIFORUM EPA.
- 53.
Article 150(4) EU-CARIFORUM EPA (emphasis added).
- 54.
Emphasis added.
- 55.
See Regulation (EU) No. 1257/2012. Whether this Regulation will ever be applied is doubtful. It is planned to be applicable as of 1 January 2014. Yet applicability depends on the entry into force of the so-called Agreement on a Unified Patent Court. This Agreement, which has been signed by 25 out of 27 Member States, needs to be ratified by at least 13 Member States, including Germany, France and the United Kingdom. Also, Spain has brought an action for annulment of the underlying regulations (Cases C-146/13 and C-147/13).
- 56.
European Commission (2012c).
- 57.
See case-law cited at fn. 26, above.
- 58.
See Articles 4 and 134 EU-CARIFORUM EPA.
- 59.
Emphasis added.
- 60.
- 61.
See Heinemann (1996), pp. 241–243 (arguing that the provision does not only cover cases of “abuse of dominance” in terms of European competition law but also IP “misuse” without requiring such dominant position).
- 62.
This is especially true with regard to the duty imposed by the European Commission on Microsoft to provide interface information to competitors. Such a duty cannot be limited to the territory of the EU. Once the competitors receive the information they can develop competing products for the world market. See Case T-201/04 Microsoft v Commission [2007] ECR II-3601.
- 63.
Article 10.3(2) EU-South Korea FTA.
- 64.
Article 231(3) EU-Central America Association Agreement.
- 65.
Emphasis added.
- 66.
- 67.
Section 4.1, above.
- 68.
See Article 127(1) EU-CARIFORUM EPA. In addition to the Dominican Republic, only three states, Barbados, Jamaica and Guyana, have national competition systems in place. The small island states of the Organisation of Eastern Caribbean States (OECS), as a subgroup of CARICOM, pursue the establishment of a common competition agency, the Eastern Caribbean Competition Commission (ECCC). See OECS (2008).
- 69.
This agency was recently established as the CARICOM Competition Commission in Suriname. See also Stewart (2012).
- 70.
This agency was established in 2011.
- 71.
Articles 277–283 EU-Central America Association Agreement.
- 72.
Article 11.1(2) EU-South Korea FTA.
- 73.
Article 11.1(1) EU-South Korea FTA.
- 74.
See Articles 258–266 EU-Colombia and Peru Trade Agreement.
- 75.
This conflict more recently arose before the ECJ in Case C-428/08 Monsanto [2010] ECR I-6765 (on the scope of biotechnological inventions and the import of soybeans to the EU that still contained the protected DNA although the beans themselves no longer had the capacity to reproduce).
- 76.
A more recent example of such conflicts is provided by the cross-border seizures of products, including HIV drugs in transit in the EU on their way from India to other developing countries or emerging economies. See, on this set of cases, Drexl (2012a). See also the more recent decision of the CJEU in Joined Cases C-446/09 and C-495/09 Philips and Nokia [2011] ECR I-0000 (not yet officially reported). In this case, the Court rejected the “manufacturing fiction” according to which customs authorities are authorised to seise goods in transit if these goods have infringed trademarks within the EU, provided that the goods were manufactured in the EU. The interpretation of Council Regulation (EC) No. 3295/94 of 22 December 1994 laying down measures concerning the entry into the Community and the export and re-export from the Community of goods infringing certain intellectual property rights, OJ 2004 L 341, 8, by the CJEU is in line with the principle of sustainable development as contained in the EU-CARIFORUM EPA.
- 77.
See fn. 26, above.
- 78.
Again the Monsanto decision of the ECJ is a good example. There, the former ECJ preferred a narrow interpretation of the scope of protection, namely, that it is limited to the functions gene sequences are expected to fulfil, with the effect that soybeans from Argentina can be more easily imported to the EU. See fn. 75, above.
- 79.
See fn. 76, above.
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Drexl, J. (2014). Intellectual Property and Implementation of Recent Bilateral Trade Agreements in the EU. In: Drexl, J., Grosse Ruse - Khan, H., Nadde-Phlix, S. (eds) EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?. MPI Studies on Intellectual Property and Competition Law, vol 20. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-39097-5_13
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