Abstract
AbstractSmoking kills. It is also very costly, which is why many governments try to change the habits of their citizens, including by changing the packaging of the products they buy. Of course, tobacco firms are pushing against such laws. They see their rights, in particular, rights to intellectual property, violated. They argue that such legislative changes take away the essence of their hard-earned IP rights and should not be permissible. They point out that the CJEU is allegedly redefining the “essence” of fundamental rights and its function in the system of limitations and developing a set of core inviolable rights.How justified are these arguments? The absolute theory of essence says that the essence of rights cannot be interfered with or taken away, including by the legislator. The relative theory of essence, on the other hand, claims that interference with essence is just a more serious interference which is still subject to the typical proportionality analysis. Therefore, the adoption of either of these two theories has profound consequences. What might constitute the essence of intellectual property rights? When are legislators touching upon it? Is the CJEU really advancing a notion of essence that can prevent legislative changes, or at least make them very difficult? The answer to all these questions depends on our understanding of what constitutes the “essence” of intellectual property rights, and what consequences this notion has under Article 17(2) of the EU Charter of Fundamental Rights.
Highlights
What might constitute the essence of intellectual property rights? When are legislators touching upon it? Is the CJEU really advancing a notion of essence that can prevent legislative changes, or at least make them very difficult? The answer to all these questions depends on our understanding of what constitutes the “essence” of intellectual property rights, and what consequences this notion has under Article 17(2) of the EU Charter of Fundamental Rights
When we look at the case-law of the CJEU, we can identify the following justifications for some of the most important intellectual property rights: 4See ECJ, Case C-277/10, Martin Luksan v
This was to be expected given that, unlike the European Court of Human Rights (ECtHR), the CJEU is at the same time interpreting secondary EU law, which includes an increasing number of laws relating to intellectual property rights
Summary
Why do all IP rights exist? As simple as this question seems, it is very difficult to answer. [t]he essential objective of a patent is to ensure, in order to reward the creative effort of the inventor, that the owner of the patent has the exclusive right to use an invention with a view to manufacturing industrial products and selling them, either directly, or by granting licences to third parties, as well as the right to oppose infringements.17 This brief survey of case-law shows that the economic function of intellectual property is key in explaining why it exists. Some rights, such as copyright, are strongly underscored for their dignitary function—in particular the link to one’s personality. Sterling Drug, ECLI:EU:C:1974:114, Judgment of Oct. 31, 1974, para. 9; ECJ, Case C-403/08, Football Association Premier League, Judgment of Oct. 4, 2011, para. 107)
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