This chapter offers an outlook to the future of IP at the European level. The EU and its legal instruments primarily approach IP from a utilitarian free market perspective and that applies also to the way they look at the future. The chapter focuses primarily on that angle when it looks at how the European IP system could and should function in the future and which direction it is taking. In a sense it offers an opportunity for reflection and attempts to enhance the reader's insight in and understanding of IP by wrapping the critical analysis of its technical rules up in a more theoretical analysis.
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26. Future Trends
Justine Pila and Paul L.C. Torremans
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21. State intervention: public undertakings and state aid
Competition law in the EU also exerts some degree of control over the actions of the Member States when they intervene in the market in ways which could harm the competitive process. The Member States commit to complying with these and other obligations the moment they agree to be bound by the acquis unionaire, which is a prerequisite for EU membership. There are two main provisions in this regard: Articles 106 and 107 TFEU. This chapter covers the basic principles underlying the application of Articles 106 and 107 TFEU, and explores the interplay between the general prohibitions they contain and their multiple exceptions. Article 106 ensures that undertakings owned, established, or regulated by the State are not protected or advantaged vis-à-vis private competitors, while Article 107 TFEU contains a general prohibition of state aid.
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5. Criminal law
This chapter explains the two main sources of criminal law in the UK: legislation, that is, Acts of Parliament (or statutes), and case law. It discusses the process by which Acts of Parliament come into existence; European Union legislation and the European Convention on Human Rights; criminal courts in which cases are heard and the systems of law reporting; how to find legislation and case law using various online resources; and how to find the criminal law of overseas jurisdictions.
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8. Freedom for Individuals to Provide and Receive Services
Articles 56–7 TFEU lay down the principle of freedom to provide services on a temporary basis by a person established in one Member State to a recipient established in another. This chapter first considers who is entitled to benefit from the services provisions and the rights they enjoy in respect of: (1) initial access to the market; (2) the exercise of the freedom; and (3) the enjoyment of social advantages.
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7. Supplementary protection certificates and the unitary patent
This chapter considers certain aspects of the involvement of the European Union (EU) with patent law. These aspects involve add-ons to a traditional patent system that is based on national patents. The first—supplementary protection certificates—is already in place. The other, the unitary patent, is close to becoming a reality.
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3. Preliminary rulings
Article 267 TFEU
Matthew J. Homewood and Clare Smith
This chapter discusses Article 267 of the Treaty on the Functioning of the European Union (TFEU). Article 267 TFEU gives the Court of Justice jurisdiction to deliver preliminary rulings on the validity and interpretation of EU law. The primary purpose of Article 267 is to ensure that EU law has the same meaning and effect in all the Member States. Where it considers a decision on a question of EU law is necessary to enable it to give judgment, any court may refer that question to the Court of Justice (the discretion to refer). Where a question of EU law is raised before a national court of last resort, that court must refer it to the Court of Justice (the obligation to refer).
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4. Direct actions in the Court of Justice of the European Union
Articles 258–260, 263, 265, 277, and 340 TFEU
Matthew J. Homewood and Clare Smith
This chapter discusses articles in the Treaty on the Functioning of the European Union (TFEU) that provide for actions that are brought directly before the Court. Under Articles 258 and 259 TFEU, respectively, the European Commission and Member States may bring enforcement proceedings against a Member State in breach of Treaty obligations. Article 260 TFEU, requires compliance with the Court’s judgment. Article 263 TFEU concerns judicial review of EU acts. The outcome of a successful action is annulment. Article 265 TFEU provides for actions against the EU institutions for failure to act.
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6. Free movement of persons
Matthew J. Homewood and Clare Smith
This chapter discusses the law on the free movement of persons in the EU. Free movement of persons is one of the four ‘freedoms’ of the internal market. Original EC Treaty provisions granted free movement rights to the economically active: workers, persons exercising the right of establishment, and persons providing services in another Member State. The Treaty also set out the general principle of non-discrimination on grounds of nationality, ‘within the scope of application of the Treaty’. All these provisions are now contained in the Treaty on the Functioning of the European Union (TFEU). Early secondary legislation granted rights to family members, students, retired persons, and persons of independent means. The Citizenship Directive 2004/38 consolidated this legislation.
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24. EU criminal law
András Csúri and John R Spencer
This chapter examines what EU criminal law consists of; the reasons for its existence; and the mechanism by which it is created. It then describes the more important of its practical manifestations. It shows that Member States are torn between the practical necessity for certain problems in the area of criminal law to be dealt with at an EU level, and a deep-seated ideological resistance to this happening. A consequence of this is that the bulk of the EU instruments of which EU criminal law is composed are designed to help and encourage the criminal justice systems of the various Member States to work together, rather than to impose upon them uniform rules of criminal law or criminal procedure devised by EU law-making institutions.
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13. Free Movement of Capital
This chapter discusses the development of free movement of capital in the EU. It covers the scope of the provision on capital; national measures that are prohibited under Article 63 TFEU; express derogations and public interest requirements. The chapter begins by examining why free movement of capital is considered an important part of any trading area before briefly examining its evolution in the EU. The chapter then analyses the detail of the Treaty provisions on capital.
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20. Introduction to Rights in Data and Information
Justine Pila and Paul L.C. Torremans
This chapter provides an overview of rights in data and information. It discusses the impetus for the creation of ‘rights’ in information, which is found in the financial investment in the gathering and the organization of the data and information. This area is entirely about the protection of investment against the ease of copying. The nature of what emerges is therefore also radically different from the traditional IP rights. Traditional IP rights such as patents, trade marks, and copyright are exclusionary rights, but they are transferable in nature. One can assign these rights. But in the area of ‘rights’ in information, non-transferability is the norm.
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22. Data Protection and Data Exclusivity
Justine Pila and Paul L.C. Torremans
This chapter examines the law on data protection and data exclusivity. It focuses on the new GDPR Regulation. It covers rules on lawful processing of personal data, on the security of the processing, on the transparency of the processing, and on promoting compliance. It also discusses the rights of the data subject, the transfer of personal data to third countries, and the period of data exclusivity granted to the pharmaceutical sector independent of any form of patent protection.
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23. Trade Secrets
Justine Pila and Paul L.C. Torremans
This chapter deals with the legal protection of trade secrets. Traditionally, trade secret protection was left to the national laws of Member States. These national regimes are rooted firmly in existing legal rules in the areas of unfair competition, tort, or breach of confidence. And there is also the “Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use, and disclosure”. The Directive seeks to impose on Member States a minimal form of harmonization and uniformity. It does not impose a (Community) right in relation to a trade secret, but it works with a common basic definition of a trade secret, the principle that there needs to be redress for the unlawful acquisition, use, or disclosure of a trade secret, and a catalogue of measures and remedies.
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1. An Introduction to Domestic and International Intellectual Property Law
Justine Pila and Paul L.C. Torremans
This chapter commences the discussion of the European law of IP by introducing the domestic and international IP systems that preceded and continue to exist alongside it. It starts with the ‘what, how, and why’ of IP law in general—what it is, how it came to be, and why it exists—and proceeds to consider European IP law as part of an international network of IP laws that, while being a product of the domestic IP laws of individual European states, nonetheless differs from those laws in three related aspects. First, unlike domestic IP laws, many international laws operate by establishing legal standards for states to implement within their own territories rather than by regulating the behaviour of those states’ citizens. Second, the need for international legal communities to accommodate the diverse values and legal traditions of their member states makes their IP laws and policies less likely to reflect a single model or justificatory theory of IP than those of individual countries. And third, a central aim of international European IP communities is to supplement or substitute domestic laws and policies with European laws and policies in pursuit of European objectives, including some that stand in tension with domestic interests, such as the abolition of territorial restrictions on the operation of IP regimes.
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17. Unfair Competition Law
Justine Pila and Paul L.C. Torremans
This chapter focuses on EU law on unfair competition. Unfair competition law is concerned with fair play in commerce. It normally acts in tandem with its more powerful, but much more narrowly focused, counterpart competition law. Together they are generally regarded as necessary in order to steer competition along an orderly course. And they thereby contribute to promoting an efficient market system that serves the interests of all participants. While there is no single EU instrument that deals with unfair competition law as a whole, there is a significant level of EU legislative intervention in relation to comparative and misleading advertising and in relation to unfair business-to-consumer commercial practices; each of these are discussed in detail.
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18. Indications of Geographical Origin
Justine Pila and Paul L.C. Torremans
This chapter examines indications of geographical origin, which establishes a link between a certain geographical location and the goods originating from that location. That link allows the consumer to distinguish between identical or similar goods based on their geographical origin. The strength of the link varies between the different schemes and involves both human and natural elements. It is also important to realize that whilst similar to (collective) trade marks, indications of geographical origin are radically different as they are open standards. The chapter first looks at the position given to indications of geographical origin in the global and European IP systems. How did a historical practice develop into an exclusive right? And how is that exclusive right shaped and protected? It then focuses on the European system for the protection of indications of geographical origin.
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19. Designs
Justine Pila and Paul L.C. Torremans
This chapter considers design law in the EU. Designs have something to do with shape and they are closely linked with the concept of a trade mark for a three-dimensional shape. Under the Community Designs Regulation, a single registered design right is granted in essence and this is done for the whole of the EU. That system is administered by the Office for Harmonization in the Internal Market (OHIM), which also administers the Community trade mark (Article 2 of the Regulation). As with the Community trade mark, the Community design right has a unitary character (Article 1(3) of the Regulation). The remainder of the chapter discusses the requirements for the grant of a registered design; grounds for refusal of registration; rights of the owner and infringement; ownership of and entitlement to a registered design; grounds for invalidity of a registered design; duration of the registered design right; and international commercial exploitation of registered designs.
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3. Health Rights and Obligations in the European Union
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter begins with a discussion of the European market for health. It then analyses examples of those elements of EU health policy that contain a significant ‘rights’ dimension; outlines the legal framework for the rights dimension of health care policy in the EU; considers the emergence of elements of a European health policy; examines cross-border access to health care in the EU; and considers ethics in science and new technologies in the EU. The prospect of Brexit will not immediately remove nor necessarily diminish the influence of EU law on the field.
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20. EU health law
Tamara K Hervey
This chapter examines EU law on health. Specifically, it discusses the law governing patient mobility; healthcare professionals; healthcare institutions; medical devices and pharmaceuticals; blood, organs, and human tissue; and public health.
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11. EU International Relations Law
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses EU law on international relations. The area of external relations has become increasingly important in recent years, as the EU strives to enhance its global presence on issues such as trade, climate change, development, human rights, and international terrorism. Some of the crucial issues for the conduct of EU international relations are effective coordination across policy fields, coordination between the EU and the Member States, and coordination at the level of international representation. Consistency across and between policies has become a constitutional requirement of EU external relations. The UK version contains a further section analysing how far EU law concerning international relations impacts on the UK post-Brexit.
