Authors: Yole Tanghe (KU Leuven/Louvain)
The scope of the EU’s external competence to act in the field of IP has repeatedly been the subject of controversy. Two recent cases of the Court of Justice of the EU (CJEU) have reversed the CJEU’s landmark decision in Opinion 1/94. In the Daiichi Sankyo case, the CJEU elaborated on the EU’s explicit external competence in the field of IP. This explicit competence is provided for by Article 207 TFEU on the common commercial policy (CCP), which allows the EU to conclude agreements concerning the ‘commercial aspects of IP’. In the Broadcasting Rights case, the Court founded its decision on the EU’s implied competence to conclude international agreements, as provided for by Article 3(2) TFEU. Considering the outcome of these two judgments, the Court seems to grant the EU a wide scope of action with regard to IPRs. Bearing in mind the internal shared competence in the field of IP, questions arise with regard to the role that is left for the Member States in the post-Lisbon era. Therefore, the aim of the paper is to outline the scope of the EU’s external competence in IP matters and to highlight the borders.