The Practical Consequences of the CJEU Judgment of 18 July 2013 Changing Its Doctrine on the Respective Competences of the EU and its Member States to Apply the TRIPS Agreement: Have We Seen the Tip of the Daiichi Iceberg Yet?

In its judgment of 18 July 2013, the Court of Justice of the European Union (“CJEU”) came to the conclusion that after the entry into force of the Lisbon Treaty on 1 December 2009, all the provisions of the TRIPS Agreement fall within the field of the common commercial policy and that, therefore, national courts of Member States are no longer competent to apply and/or interpret them on their own. This was a radical change from the doctrine laid down in its judgments of 14 December 2000 and 11 September 2007, where the CJEU had concluded that in the fields (such as patents) where the EU has not yet legislated, the Member States remained principally competent. This article, by analyzing the practical consequences that such judgment has had on the case law of national courts during the past three years, demonstrates that this bold change of doctrine in fields such as patent law has placed the EU and its Member States in an impossible situation: the institution (EU) that, according to the CJEU, would now be competent is incapable of complying with the obligations of protection introduced by the TRIPS Agreement. This is because the EU does not have a patent office and it has recently decided that it does not want to have one. Furthermore, the institutions (administrative and judicial authorities of Member States) that would be capable of complying with such patent protection obligations would no longer be competent. As a result, this change of doctrine has paradoxically left the EU and its Member States exposed to the risk of being called before the WTO Dispute Settlement Body for failing to comply with such protection obligations (in particular, Art. 70.7 of the TRIPS Agreement).