Polydor Limited and RSO Records Inc. v Harlequin Records Shops Limited and Simons Records Limited.
Date: 1982-02-09
14 THE PROVISIONS OF THE AGREEMENT ON THE ELIMINATION OF RESTRICTIONS ON TRADE BETWEEN THE COMMUNITY AND PORTUGAL ARE EXPRESSED IN TERMS WHICH IN SEVERAL RESPECTS ARE SIMILAR TO THOSE OF THE EEC TREATY ON THE ABOLITION OF RESTRICTIONS ON INTRA-COMMUNITY TRADE . HARLEQUIN AND SIMONS POINTED OUT IN PARTICULAR THE SIMILARITY BETWEEN THE TERMS OF ARTICLES 14 ( 2 ) AND 23 OF THE AGREEMENT ON THE ONE HAND AND THOSE OF ARTICLES 30 AND 36 OF THE EEC TREATY ON THE OTHER .
15 HOWEVER , SUCH SIMILARITY OF TERMS IS NOT A SUFFICIENT REASON FOR TRANSPOSING TO THE PROVISIONS OF THE AGREEMENT THE ABOVE-MENTIONED CASE-LAW , WHICH DETERMINES IN THE CONTEXT OF THE COMMUNITY THE RELATIONSHIP BETWEEN THE PROTECTION OF INDUSTRIAL AND COMMERCIAL PROPERTY RIGHTS AND THE RULES ON THE FREE MOVEMENT OF GOODS .
16 THE SCOPE OF THAT CASE-LAW MUST INDEED BE DETERMINED IN THE LIGHT OF THE COMMUNITY ' S OBJECTIVES AND ACTIVITIES AS DEFINED BY ARTICLES 2 AND 3 OF THE EEC TREATY . AS THE COURT HAS HAD OCCASION TO EMPHASIZE IN VARIOUS CONTEXTS , THE TREATY , BY ESTABLISHING A COMMON MARKET AND PROGRESSIVELY APPROXIMATING THE ECONOMIC POLICIES OF THE MEMBER STATES , SEEKS TO UNITE NATIONAL MARKETS INTO A SINGLE MARKET HAVING THE CHARACTERISTICS OF A DOMESTIC MARKET .
17 HAVING REGARD TO THOSE OBJECTIVES , THE COURT , INTER ALIA , IN ITS JUDGMENT OF 22 JUNE 1976 IN CASE 119/75 TERRAPIN ( OVERSEAS ) LTD . V TERRANOVA INDUSTRIE C . A . KAPFERER & CO . ( 1976 ) ECR 1039 , INTERPRETED ARTICLES 30 AND 36 OF THE TREATY AS MEANING THAT THE TERRITORIAL PROTECTION AFFORDED BY NATIONAL LAWS TO INDUSTRIAL AND COMMERCIAL PROPERTY MAY NOT HAVE THE EFFECT OF LEGITIMIZING     THE INSULATION OF NATIONAL MARKETS AND OF LEADING TO AN ARTIFICIAL PARTITIONING OF THE MARKETS AND THAT CONSEQUENTLY THE PROPRIETOR OF AN INDUSTRIAL OR COMMERCIAL PROPERTY RIGHT PROTECTED BY THE LAW OF A MEMBER STATE CANNOT RELY ON THAT LAW TO PREVENT THE IMPORTATION OF A PRODUCT WHICH HAS LAWFULLY BEEN MARKETED IN ANOTHER MEMBER STATE BY THE PROPRIETOR HIMSELF OR WITH HIS CONSENT .
18 THE CONSIDERATIONS WHICH LED TO THAT INTERPRETATION OF ARTICLES 30 AND 36 OF THE TREATY DO NOT APPLY IN THE CONTEXT OF THE RELATIONS BETWEEN THE COMMUNITY AND PORTUGAL AS DEFINED BY THE AGREEMENT . IT IS APPARENT FROM AN EXAMINATION OF THE AGREEMENT THAT ALTHOUGH IT MAKES PROVISION FOR THE UNCONDITIONAL ABOLITION OF CERTAIN RESTRICTIONS ON TRADE BETWEEN THE COMMUNITY AND PORTUGAL , SUCH AS QUANTITATIVE RESTRICTIONS AND MEASURES HAVING EQUIVALENT EFFECT , IT DOES NOT HAVE THE SAME PURPOSE AS THE EEC TREATY , INASMUCH AS THE LATTER , AS HAS BEEN STATED ABOVE , SEEKS TO CREATE A SINGLE MARKET REPRODUCING AS CLOSELY AS POSSIBLE THE CONDITIONS OF A DOMESTIC MARKET .
19 IT FOLLOWS THAT IN THE CONTEXT OF THE AGREEMENT RESTRICTIONS ON TRADE IN GOODS MAY BE CONSIDERED TO BE JUSTIFIED ON THE GROUND OF THE PROTECTION OF INDUSTRIAL AND COMMERCIAL PROPERTY IN A SITUATION IN WHICH THEIR JUSTIFICATION WOULD NOT BE POSSIBLE WITHIN THE COMMUNITY .
20 IN THE PRESENT CASE SUCH A DISTINCTION IS ALL THE MORE NECESSARY INASMUCH AS THE INSTRUMENTS WHICH THE COMMUNITY HAS AT ITS DISPOSAL IN ORDER TO ACHIEVE THE UNIFORM APPLICATION OF COMMUNITY LAW AND THE PROGRESSIVE ABOLITION OF LEGISLATIVE DISPARITIES WITHIN THE COMMON MARKET HAVE NO EQUIVALENT IN THE CONTEXT OF THE RELATIONS BETWEEN THE COMMUNITY AND PORTUGAL .
21 IT FOLLOWS FROM THE FOREGOING THAT A PROHIBITION ON THE IMPORTATION INTO THE COMMUNITY OF A PRODUCT ORIGINATING IN PORTUGAL BASED ON THE PROTECTION OF COPYRIGHT IS JUSTIFIED IN THE FRAMEWORK OF THE FREE-TRADE ARRANGEMENTS ESTABLISHED BY THE AGREEMENT BY VIRTUE OF THE FIRST SENTENCE OF ARTICLE 23 . THE FINDINGS OF THE NATIONAL COURT DO NOT DISCLOSE ANY FACTOR WHICH WOULD PERMIT THE CONCLUSION THAT THE ENFORCEMENT OF COPYRIGHT IN A CASE SUCH AS THE     PRESENT CONSTITUTES A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE WITHIN THE MEANING OF THE SECOND SENTENCE OF THAT ARTICLE .