European courts and intellectual property: a tale of Hercules, Zeus and Cyclops

Article abstract:

The nature of the intellectual property cases confronting the Court of Justice is changing. It is now called upon to deal with Community IP legislation and to define the contents of IP rights. This creates problems for the expertise of the European judges, who may lack prior experience in this area of law. They are faced with complex technical questions and their pronouncements will have profound effects, due to the fact that countless business decisions depend on IP rights. Yet the ever-widening variety of cases will hinder any process of learning-by-doing. National judges are also experiencing difficulties. They necessarily view Community legislation through the framework created by the assumptions underpinning their domestic system. Yet the EC rights may be based on entirely different principles. The Arsenal saga illustrates the problems that may plague the relationship between the Court of Justice and national courts. However, it is unlikely that the Court will often be found to have exceeded its jurisdiction under Art.234 EC. The distinction between interpretation and other aspects of judicial activity is a matter of language. As long as the Court of Justice drafts its judgments in abstract terms, it is not overstepping its jurisdiction, no matter how detailed its interpretation is.