"Re-writing the treaties with precedent: Intellectual property rights and EU law"

McCown, Margaret. (2003) "Re-writing the treaties with precedent: Intellectual property rights and EU law". In: UNSPECIFIED, Nashville, TN. (Unpublished)

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Abstract

Intellectual property rights disputes constitute one of the longest standing conflicts between the European Court of Justice and EU member states over the scope of ECJ authority. Although the treaties explicitly reserve to member states the right to maintain copyright and patent regimes, by the early 1970s the European Court of justice had begun delivering pro-integrative decisions in such disputes. These judgments eliminated or re-wrote national regulations and contravened the explicit intentions of the treaties; it is unsurprising that their legitimacy was constantly challenged by member states. This paper examines why it was, however, that member states were unable to effectively challenge the Court's decisions and how the ECJ developed an extensive and nuanced set of EU Level rules, governing traders' intellectual property rights. This paper shows the importance of (1) private litigants' strategies of intensive repeated litigation and (2) the ECJ's move to precedent based decision making in the 1970s to its capacity to contravene member state preferences.

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