Opinion of the Advocate General — ECLI:EU:C:2007:48
Date: 2007-01-23
Language of the case: Portuguese
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: External relations;Commercial policy;Intellectual, industrial and commercial property;World Trade Organization;Patents
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Interpretation of an international agreement concluded by the Community and the Member States by virtue of joint competence (Art. 234 EC; TRIPs Agreement, Art. 33) 2. International agreements – Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs) (TRIPs Agreement, Art. 33) 1. The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs Agreement) having been concluded by the Community and its Member States by virtue of joint competence, the Court, hearing a case brought before it in accordance with the provisions of the EC Treaty, in particular Article 234 EC, has jurisdiction to define the obligations which the Community has thereby assumed and, for that purpose, to interpret the provisions of the TRIPs Agreement. The matter of the sharing of competence between the Community and its Member States calls for a uniform reply at Community level that the Court alone is capable of supplying. There is, therefore, some Community interest in considering the Court as having jurisdiction to interpret Article 33 of the TRIPs Agreement concerning the minimum duration of patent protection in order to ascertain whether it is contrary to Community law for that provision to be given direct effect. (see paras 33, 36-38) 2. In the context of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), constituting Annex 1C to the Agreement establishing the World Trade Organisation, signed at Marrakesh on 15 April 1994 and approved by Decision 94/800 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994), when the field is one in which the Community has not yet legislated and which consequently falls within the competence of the Member States, the protection of intellectual property rights and measures taken for that purpose by the judicial authorities do not fall within the scope of Community law, so that the latter neither requires nor forbids the legal order of a Member State to accord to individuals the right to rely directly on a rule laid down in the TRIPs Agreement or to oblige the courts to apply that rule of their own motion. On the other hand, if it should be found that there are Community rules in the sphere in question, Community law will apply, which will mean that it is necessary, as far as may be possible, to supply an interpretation in keeping with the TRIPs Agreement, although no direct effect may be given to the provision of that agreement at issue. The fact is that the Community has not yet exercised its powers in the sphere of patents, into which falls Article 33 of the TRIPS Agreement on the minimum duration of patent protection, or that, at the very least, at internal level, that exercise has not to date been of sufficient importance to lead to the conclusion that, as matters now stand, that sphere falls within the scope of Community law. In those circumstances, as Community legislation in the sphere of patents now stands, it is not contrary to Community law for Article 33 of the TRIPs Agreement to be directly applied by a national court subject to the conditions provided for by national law. (see paras 34-35, 46, 48, operative part)