The Borders of EU Competences with Regard to the International Regulation of Intellectual Property Rights: Constructing a Dam to Resist a River Bursting Its Banks

In view of the recent negotiations on the highly anticipated Free Trade Agreements to which the EU shall be party (e.g. CETA and TTIP), assessing the extent to which the EU can regulate intellectual property rights in its external relations seems relevant. Two recent cases of the Court of Justice of the EU have reversed its landmark decision in Opinion 1/94, in which intellectual property regulation was almost entirely excluded from the EU’s exclusive competence in trade matters. Firstly, in the Daiichi Sankyo case, the Court elaborated upon the EU’s explicit external competence in the field of intellectual property. This explicit competence is provided for by Article 207 TFEU on the common commercial policy, which allows the EU to conclude agreements concerning the ‘commercial aspects of intellectual property’. In the Broadcasting Rights case, the Court founded its decision on the EU’s implied competence to conclude international agreements, as provided for by Article 3(2) TFEU. Considering the outcome of these two judgments, the Court seems to grant the EU a wide scope of action with regard to intellectual property rights. As a consequence, questions arise with regard to the post-Lisbon era role that is left for the Member States in the field of intellectual property. Therefore, the aim of this article is to outline the scope of the EU’s exclusivity in IP matters and to highlight the borders.