Politique commerciale commune et protection juridique de l'innovation

Abstract

THE COMMON COMMERCIAL POLICY Since a few years, the European Union (EU) has taken several initiatives to promote and protect innovation. According to the European Commission, innovation is the prerequisite for the competitiveness of the European industries and businesses and, furthermore, for growth and employment. Thus, innovation has been given a central place in the Lisbon strategy which influences national and European policies and actions. In this context, intellectual property rights (IPRs) enforcement has become a priority in fighting counterfeiting and piracy which have increased in a worrisome way. The achievement of the single market is the first legal basis to organize a uniform system of IPRs by creating titles that coexist with national ones. But, in the context of globalization, the EU does also deal with external trade policy as part of the external aspects of the Lisbon strategy. The interface between external trade and IPRs appeared in 1986 in the framework of the Uruguay Round. But, at that time, the European Community had no competence on this subject. The Amsterdam and Nice treaties tried to give it the competence in the commercial aspects of intellectual property. Such initiative resulted in a lack of visibility, as its competence was shared with the Member States. As the Lisbon treaty has clarified its competences, the European Union has now an exclusive competence in the commercial aspects of intellectual property and the Council can act by a qualified majority to conclude agreements on this subject. Without waiting the entry into force of the Lisbon treaty, the European Commission has decided that IPRs were one of the new growth sectors that the EU would include in the foundations of its common commercial policy. The EU maintains its commitment to multilateralism and is involved in the Doha Round which tries to improve the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement in line with development priorities. In that context, the UE has a unique status of full member next to its member states and tries to get a better protection of geographical indications. But, as the negotiations face strong oppositions between the parties on the agricultural subject, the European Commission has decided, through free trade agreements (FTAs) to get stronger and stricter provisions on IPRs. By concluding FTAs, the EU seeks to obtain extended engagements than in the multilateral context. This is also a way for the UE to export its own standards of IPRs protection. Bilateralism is considered a complement to multilateralism and the European Commission wants to use the same tools as its “competitors”, such as the United States. On the basis of several criterias, it has identified countries which could become its trading partners through FTAs. The study of the recent agreements between the EU and the Cariforum group and with South Korea reveal deeper engagements from the EU’s trading partners to provide an IP protection similar to the one in the EU. Furthermore, since 2007, negotiations are engaged with ASEAN and India which have qualified as priorities for the conclusion of new generations of FTAs. The European Commission seems to be all the more determined to improve through bilateral cooperation the enforcement of IPRs as the “Europe 2020” strategy maintains the priority on innovation and the end of the Doha Round is not predictable in a middle term. But this position may not be conformed to the EU’s international objectives.