The TRIPs Agreement and the ECJ: A new dawn? Some comments about joined Cases C-300/98 and C-392/98, Parfums Dior and Assco Gerüste

Abstract:

This paper seeks to analyse the recent judgment of the European Court of Justice (ECJ) in Joined Cases C-300 and C-300/98, Parfums Dior and Assco Gerüste, in the light of the previous case-law of the Court relating to international agreements. In particular, this case note will focus on the possibilities of further evolution of the case-law as regards the jurisdiction of the Court to interpret provisions of TRIPs, and the issue of direct effect.

It will be argued that Parfums Dior could represent a new dawn for the jurisdiction of the Court under Article 234 EC, which could lead to an obligation for the courts of the Member States to refer questions relating to the interpretation of the TRIPs Agreement to the ECJ. However, a similar progressive step may be less realistic with respect to the direct effect of TRIPs under Community law because the Court has consistently refused to recognise the direct effect of the WTO Agreements. It will be argued that even if national courts were to recognise the direct effect of TRIPs as a matter of national law, it would not prevent the Court from `taking it back' in the future, once TRIPs will fall under the exclusive competence of the European Community. This case study reveals that the possibility of the Court reasserting the absence of direct effect of TRIPs as a matter of Community law could be effectuated without overly negative consequences for the level of protection of individual rights within the Community.