The real story of a fiction: transit after Montex under Regulation (EC) 1383/2003

Abstract

The reconciliation of the principle of freedom of transit, enshrined in the GATT Agreement, with the need to safeguard IP rights has become an increasingly complex issue since the judgment of the CJEU in Case C-281/05, Montex v Diesel. Over the last years, the question of whether Regulation 1383/2003 adequately addresses this relationship is fiercely debated before the national courts. This contribution explores the case law of the national courts during the post-Montex era. It points to the existing distortions as to the interpretation of the Regulation and of the CJEU's case law, in the first place, and the substantive provisions in place in the Member States, in the second place, which undermine the acquis communautaire as well as the rights of IP right holders when it comes to preventing the movement of counterfeit and pirated goods in transit. The conclusions of this analysis call for a definite and unequivocal delineation—either by the CJEU or, should the latter fail to do so, by the Community legislator—of the rights of IP right holders to oppose the transit of counterfeit and pirated goods through the EU territory.