2.

The court making the reference has been asked to determine whether the operation of the Uniform Benelux Law is compatible with the provisions of the EEC Treaty governing the free movement of goods. In order to clarify that question an interpretation of the provisions governing the free movement of goods, in particular Articles 3C and 36 of the EEC Treaty, is sought from the Court. In that regard it must be borne in mind that the Court of Justice may give a ruling under Article 177 of the EEC Treatv onlv on the interpretation of the Treaty and of act* of the institutions ol the Communin or on the validity of such acts, bui noi on the interpretation ot 2 provisionn of national law Accordingly, the purpose ol the tirsi question raised rn ine court making the reference is to ascertain whether Articles 30 and 36 of the Treaty are to be interpreted as precluding the application of provisions of national law which confer on the first applicant for registration an exclusive right in a design, without there being any opportunity for persons other than the author, the person commissioning or employing che author or any person entitled under the author to challenge that right on the ground that the applicant is not the actual author of the design. In answering that question, it is necessary to proceed on the assumption that the exercise of an exclusive territorial right constitutes in principle an obstacle to the free movement of goods between Member States. Accordingly, any provisions of national law the application of which leads to the obstruction of trade between the Member States are in principle to be regarded as measures having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the EEC Treaty. However, according to Article 36 of the EEC Treaty, the provisions of Anieles 30 to 34 do not preclude such prohibitions or restrictions on imports which are justified infer alia on grounds of the protection of industrial and commercial property. (a) The first question to arise is whether national rights in designi also fall vithm the abovementioned exception. In mv opinion, it is necessary, as is emphasized by all those taking part in the proceedings, to take as a basis the Coun's existing case-law on the relationship between the rules governing the free movement of goods on the one hand and national industrial and intellectual property rights on the other. After initially establishing in a series of decisions — at first only by implication in the Deutsche Grammophon Gesellschaft case ( 4 ) and finally by way of an unequivocal statement in the GEMA case ( 5 ) — that reliance on the right to a patent or trade mark may justify an exception to the rules governing the free movement of goods, the Court has made it clear that Article 36 of the EEC Treaty also applies to copyright and consequently to related protected rights. As is apparent from the last-mentioned judgment, the Court proceeded from the premise that there were no reasonable grounds for distinguishing between industrial and commercial property rights on the one hand and copyright on the other, as far as the commercial exploitation of such rights is concerned. However, the distinctive feature of a right in a design is that it can be justified by considerations relating to copyright on the one hand and by considerations of industrial policy on the other. It is along those lines, too, that the form and scheme of national legislation relating to rights in a design differ from one country to another. In some cases they are modelled on patent law, in others on the law of copyright. That question need not be examined in detail at this point since, according to the case-law of the Court, both the right to a patent and copyright come within the scope of the protection of industrial and commercial property within the meaning of Article 36 of the EEC Treaty, with the result that a right in a design must also be included in that category. In that connection, it should not be forgotten that, as is apparent inter alia from Article 3 (1) of the Uniform Benelux Law, the Benelux legislature, too, regards an exclusive right in a design as an industrial property right within the meaning of the Paris Convention of 1883 for the Protection of Industrial Property. Article 1 (2) of that convention, which was most recently amended in Stockholm in 1967 and to which all the Member States have acceded, includes industrial designs amongst the articles to which the protection of industrial property extends. Furthermore, the fact that the Council also proceeds on the assumption that industrial designs must be regarded as industrial property rights is apparent, as the Government of the United Kingdom points out, in particular from Article 4 (2) (2) (b) of Regulation No 17 of the Council of 6 February 1962 (Official Journal, English Special Edition 1959-1962, p. 87) in which patents, utility models, designs and trade marks are listed as subgroups of industrial property rights. (b) Since, therefore, it is necessary to proceed from the premise that conflicts between a right in a design and the principle of the free movement of goods within the common market must be also resolved in accordance with Article 36 of the EEC Treaty, reference may also be made to the hitherto consistent case-law of the Court of Justice according to which it follows from the wording, in particular of the second sentence, and trom the position oi that article that the EEC Treaty does not affect the existence of industrial and commercial property rights permitted under the legislation of a Member State, although the exercise of those rights may very well be restricted, according to the circumstances, by the prohibitions laid down in the Treaty. As an exception to one of the fundamental principles of the common market, Article 36 permits restrictions on the free movement of goods, according to the case-law of the Court, only in so far as such restrictions are justified for the protection of the rights which constitute the specific subject-matter of the industrial and commercial property rights concerned. Therefore in examining the question whether a right in a design arising under the Benelux Law may successfully displace the principle of the free movement of goods, it is necessary to begin by defining the specific subject-matter of that territorial property right in order to deduce from it which barriers to trade may be permitted under Community law and which may not. In that regard, the question also arises whether the specific subject-matter of a right in a design is determined, as the appellant contends, by reference to a uniform, as it were ideal, model of this property right or whether, as the United Kingdom, German and French Governments as well as the respondent and the Commission maintain, it is necessary, in determining the specific subject-matter of the right in a design within the meaning of Article 36 of the EEC Treaty, to take as a basis each time the relevant national legislation governing rights in a design, regard being had to the specific structure and content of that legislation. In my view, in the light of the meaning and purpose of the exception provided for bv Article 36 of the EEC Treaty, the answer to that question can only be that as long as the national provisions of the individual Member States on the protection of industrial property in the Community have not been harmonized, only the legislatures of the Member States may determine whether industrial property rights exist. ( 6 ) It also follows that, in principle, it is for the Member States alone to determine the degree of protection which they wish to provide in respect of industrial and commercial property rights as well as the precise form and content to be given to such rights, subject nevertheless to compliance with the limits set out by the Treaty. In the light of the above considerations, the specific subject-matter of a right in a design under the Benelux Law may be defined, as suggested by the Commission on the basis of the case-law of the Court, as the exclusive right of the proprietor, in practice the person filing the design, to market a product of a given industrial design for the first time. That description, which does not claim to be exhaustive, of the specific subject-matter of a right in a design and which relates to the legal proprietor, should moreover, as far as I can see, hold true for all rights in a design arising in the Member States and also corresponds to the description of the specific subject-matter of the right to a patent and to a trade mark hitherto applied by the Court. (c) However, in view of the structural differences between national design rights, the problem of the proprietor and the structure of the right can be resolved only by the legislature of each Member State. In consequence of the disparities between the objectives pursued in relation to the protection of national rights in a design — the purpose of the Uniform Benelux Law is also, as the Court has heard, to protect at least industrial manufacturers or craftsmen who wish to distinguish their products from those of others by endowing them with a distinctive form — it must be recognized that the proprietor of a right in a design may also be a person who has filed the design without the author's consent. Finally, the rules embodied in the Uniform Benelux Law would not be open to challenge even if the view were to be taken that the EEC Treaty restricts the power of the Member States to determine the form of industrial property rights so as to ensure that the author of the design is afforded some degree of protection by the right in the design. In that regard, it should be borne in mind that, as the Gerechtshof and the Netherlands Government in particular have pointed out, the system of rules embodied in the Uniform Benelux Law serves inter alia to provide for legal certainty inasmuch as the right arises upon registration. In that regard, in order to simplify matters, the question whether the person applying for registration and the author of the design are one and the same person was deliberately omitted from consideration. In any event, where registration is effected by a third party, the author's rights are protected by the fact that he may within a certain period lay claim to the registration or demand its cancellation. If, on the other hand, as the appellant claims, that opportunity were also granted to third parties, the result would be that the actual author of the design would no longer be able to assert his rights on account of the design's lack of novelty and that would constitute a serious encroachment bv Community law on the existence of the right guaranteed by national law. Furthermore, the compatibility of a legislative technique of that kind with Community law is also apparent from the fact that corresponding rules are provided for in respect of patents by Articles 56 and 57 of the Convention for the European Patent for the Common Market (No 76/76/EEC, Official Journal L 17, 26. 1. 1976, p. 1). (d) As may be inferred from the judgment making the reference, the appellant also takes the view that the protection afforded by the Uniform Benelux Law to “copying” is incompatible with the principle of the free movement of goods. As regards that contention too it is necessary to point out in the first place that the question whether “copying” qualifies for protection must also be regarded as a matter covered by the content of legislation relating to rights in a design and is thus subject to the system established by the Member States. In this case, too, as the Government of the Federal Republic of Germany rightly sutes, it is not possible, because of the lack of harmonization of national laws governing rights in a design, to point to ideal standard models for design legislation suitable for the European Economic Community, and in particular for the concept of novelty as the dividing line between an imitation or “copy” which qualifies for protection and one which does not. A glance at the laws of the Member States in the matter of designs shows instead that under the legislation of the other Member States, in this field rights are to a certain extent created for the protection of the “copying” of antique designs, designs from other cultures, etc. As a rule, the individual laws on designs establish the dividing line between “copying” which qualifies for protection and an imitation which does not solely by reference to the concept of novelty which, as is known, spans a range of variation from subjective to absolutely objective novelty. With regard to this concept, too, it cannot be the Court's task, contrary tothe view expressed by the appellant, to bring into line with each other the as yet unharmonized laws of the individual Member States in regard to designs.