Constitutional Functions of the EU’s Intellectual Property Treaties

Abstract

Regulating intellectual property (IP) with free trade agreements (FTAs), economic partnership agreements (EPAs), and even multi-party IP measures may be politically and procedurally easier for the European Union (EU) than regulating the same subject matter internally. IP chapters included in trade agreements falling under the EU’s exclusive Common Commercial Policy (CCP) competence could become a particularly attractive instrument to regulate IP. The EU’s exclusive CCP competence now covers “commercial aspects of intellectual property” and is likely broader than the EU’s internal exclusive competence to legislate IP. The EU could thus resort to its exclusive CCP competence and extensively regulate IP through trade treaties. Moreover, the FTAs, EPAs, and new multi-party IP measures assume constitutional functions not possible for internal legislative acts of the EU by guiding the interpretations of EU secondary law and by enabling its judicial review. As the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) lacks the capacity for direct effect and judicial review, the IP chapters of the FTAs and EPAs as well as new multi-party IP measures could change the constitutional landscape of the EU’s IP law in a significant manner.