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European Union – Intellectual Property Aspects of New Constitution

European Union – Intellectual Property Aspects of New Constitution

An EU Constitution was agreed on June 18, 2004. Formal signature will take place in Rome in late October and, if ratified by the member states, will come into effect on November 1, 2006.

Although much of the press comment has focussed on changes from the current EU regime, much of the constitution is effectively a consolidation of the Treaty of the European Community (nee the Treaty of Rome) and the Treaty of the European Union (nee the Treaty of Amsterdam). There is one new provision on intellectual property, Article III-68, which reads as follows:

(1) In establishing an internal market, measures for the introduction of European instruments to provide uniform intellectual property rights protection throughout the Union and for the setting up
of centralized Union-wide authorization, coordination and supervision arrangements shall be established in European laws or framework laws.

(2) A European Law of the Council shall establish language arrangements for the European instruments. The Council shall act unanimously after consulting the European Parliament.

The fact that Article III-68 is written in two parts has some practical significance. The first paragraph permits the adoption of new IP laws by a qualified majority of the Council and a simple majority of Parliament (this being the normal requirement for “ordinary legislation” – Article III-302). The second paragraph language, however, requires unanimity in the Council
(although under Article III-246, abstentions do not destroy “unanimity” if there are no votes against). Under Article I-24 of the proposed constitution, a qualified majority in the Council will be achieved by votes of at least 15 member states constituting at least 55% of the member states as long as the population of these states is at least 65% of the population of the EU.

Previously existing IP features of the Treaty of the European Community (TEC) that have been included in the new constitution include the following:

TEC Article No Constitution Article No
29 (Free flow of goods) III-42
30 (Derogation from Free flow for IP etc) III-43
81 Agreements in restraint of trade unlawful III-50
82 Abuse of a dominant position unlawful III-51
133 Common commercial policy includes IP III-217
225a Ability to create specialist courts III-264
229a European laws may give ECJ jurisdiction over IP rights III-269

Thus it can be seen, although the present community patent proposal
seems to be presently stalled, the EU Constitution provides a framework for
trying again.

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