Shared or Exclusive? -The External Competence of the EU in Regard to TRIPs
Abstract: The purpose of this paper is to examine whether an exclusive or a shared external competence of the Community is to be preferred regarding matters falling under the TRIPs (Agreement on Trade-Related Aspects of Intellectual Property Rights. In Opinion 1/94, the ECJ (European Court of Justice) stated that the Community's external competence regarding TRIPs is shared. This provoked concerns that the unity of action of the EU in the multilateral trade talks in the WTO would be damaged if the Community did not have an exclusive external competence concerning TRIPs, as it had in regard to GATT. Two approaches have been attempted in relation to the external competence regarding TRIPs, an exclusive external competence based on Article 133 or a shared external competence based on the doctrine of implied powers. This paper analyses these two approaches to the external competence regarding TRIPs. Firstly, from a historical perspective, analysing relevant case law and the successive amendments made to Article 133. Secondly, the practice of the EU in the WTO is examined. This is contextualised by an examination of intellectual property rights in the internal market under the ECT. This highlights the assumption that it would be incoherent with the status of intellectual property rights in the EU to make the external competence regarding intellectual property rights under TRIPs exclusive by its inclusion in Article 133. The shared competence regarding TRIPs is interpreted as making the participation of both the Community and the Member States legally necessary. This means that there is no risk that the Member States will negotiate separate agreements with third countries if no common position is reached. The greatest threat that a shared competence could lead to is then avoided. The conclusion of this paper is that a shared external competence should be the method of choice regarding TRIPs as it permits the unity of action to function while preserving the national interests of the Member States. However, as intellectual property rights are gradually exhaustively harmonised, they become the exclusive competence of the Community, as a result of the principle of parallelism.
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