Opinion of the Advocate General — ECLI:EU:C:2000:378
Date: 2000-07-11
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Commercial policy;Intellectual, industrial and commercial property
Procedure: Reference for a preliminary ruling
Origin: Netherlands

SUMMARY — JOINED CASES C-300/98 AND C-392/98 
Summary of the Judgment 
1. Preliminary rulings — Jurisdiction of the Court — Interpretation of an international 
agreement concluded by the Community and the Member States under joint 
competence and having a bearing on the application by national courts of Community 
provisions — Agreement on Trade-Related Aspects of Intellectual Property Rights 
(TRIPs) 
(EC Treaty, Art. 177 (now Art. 234 EC); TRIPs Agreement, Art. 50) 
2. International agreements — Agreement on Trade-Related Aspects of Intellectual 
Property Rights (TRIPs) — Article 50(6) — Direct effect — None — Obligations 
of national courts — Distinction drawn between fields falling within the scope of 
Community law and those falling within the competence of the Member States 
(TRIPs Agreement, Art. 50) 
3. International agreements — Agreement on Trade-Related Aspects of Intellectual 
Property Rights (TRIPs) — Intellectual property right — Concept — Right to sue 
under general provisions of national law concerning wrongful acts in order to protect 
an industrial design against copying — Classification with regard to that concept a 
matter for the Contracting Parties 
(TRIPs Agreement, Art. 50(1)) 
1. Where the judicial authorities of the 
Member States are called upon to order 
provisional measures for the protection 
of intellectual property rights falling 
within the scope of the Agreement on 
Trade-Related Aspects of Intellectual 
Property Rights (the TRIPs Agree­
ment), as set out in Annex 1 C to the 
Agreement establishing the World 
Trade Organisation, approved on 
behalf of the Community, as regards 
matters within its competence, by 
Decision 94/800, and a case is brought 
before the Court of Justice in accord­
ance with the provisions of the Treaty, 
in particular Article 177 thereof (now 
Article 234 EC), the Court of Justice 
has jurisdiction to interpret Article 50 
of the TRIPs Agreement. 
(see para. 40 and operative part 1) 
2. The provisions of the Agreement on 
Trade-Related Aspects of Intellectual 
Property Rights (the TRIPs Agree­
ment), an annex to the Agreement 
establishing the World Trade Organ-
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DIOR AND OTHERS 
isation, are not such as to create rights 
upon which individuals may rely 
directly before the courts by virtue of 
Community law. 
However, in a field to which the TRIPs 
Agreement applies and in respect of 
which the Community has already 
legislated, the judicial authorities of 
the Member States are required by 
virtue of Community law, when called 
upon to apply national rules with a 
view to ordering provisional measures 
for the protection of rights falling 
within such a field, to do so as far as 
possible in the light of the wording and 
purpose of Article 50 of the TRIPs 
Agreement. 
In a field in which the Community has 
not yet legislated and which conse­
quently falls within the competence of 
the Member States, the protection of 
intellectual property rights, and mea­
sures adopted for that purpose by the 
judicial authorities, do not fall within 
the scope of Community law. Accord­
ingly, Community law neither requires 
nor forbids that the legal order of a 
Member State should accord to indivi­
duals the right to rely directly on the 
rule laid down by Article 50(6) of the 
TRIPs Agreement or that it should 
oblige the courts to apply that rule of 
their own motion. 
(see paras 44, 49 and operative part 2) 
3. Article 50 of the Agreement on Trade-
Related Aspects of Intellectual Property 
Rights (the TRIPs Agreement) leaves to 
the Contracting Parties, within the 
framework of their own legal systems, 
the task of specifying whether the right 
to sue under general provisions of 
national law concerning wrongful acts, 
in particular unlawful competition, in 
order to protect an industrial design 
against copying is to be classified as an 
'intellectual property right' within the 
meaning of Article 50(1) of the TRIPs 
Agreement. 
(see para. 63 and operative part 3) 
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