The Court held in Case C-431/05 Merck Genéricos Produtos Farmacêuticos that it is not contrary to EC law for Article 33 of the TRIPs Agreementto be given direct effect in national law and be applied directly by a national court. The Court also held that it had jurisdiction to interpret Article 33 of the TRIPS Agreement to ascertain whether it is contrary to EC law for that provision to be given direct effect.
Article 33 of the TRIPs Agreement, as everyone surely knows, is in the section on patents and stipulates :
"The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date."Hands up all those who did not know that.
The Court held that the WTO Agreement, of which the TRIPs Agreement forms part, was signed by the Community and subsequently approved by Decision 94/800. Therefore, according to settled case-law, the provisions of that convention form an integral part of the Community legal order (see, inter alia, Case C-344/04 IATA and ELFAA, paragraph 36, and Case C-459/03 Commission v Ireland, paragraph 82). Within the framework of that legal order the Court has jurisdiction to give preliminary rulings concerning the interpretation of that agreement (see, Case 12/86 Demirel, paragraph 7).
Because the TRIPs agreement was concluded by the EC and its member States by virtue of joint competence without any allocation between them of their respective obligations towards the other contracting parties, what is decisive in deciding whether the Court of Justice has jurisdiction to interpret the particular stipulation of the TRIPs Agreement is whether the EC has legislated in the field covered by it.
When the field is one in which the EC 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 EC 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 (Joined Cases C-300/98 and C-392/98 Dior and Others, paragraph 48).
On the other hand, if the EC has enacted rules in the sphere in question, EC law will apply. That means that it is necessary, as far as may be possible, to supply an interpretation in keeping with the TRIPs Agreement (see, Dior and Others, paragraph 47), although no direct effect may be given to the provision of that agreement at issue (Dior and Others, paragraph 44).
In order to answer the question whether there is or there is not any EC legislation covering the subject matter of the TRIPs Agreement, the Court held that a uniform answer at the EC level is required thus justifying giving the Court of Justice exclusive jurisdiction to answer it.
In this case, the Court held that there are no rules on the EC level specifically covering the subject matter of Article 33 of the TRIPs Agreement. Accordingly, the member States remain competent and they can decide whether or not Article 33 has direct effect. It is not contrary to EC law to give that provision direct effect in national law but of course, EC law does not require it to have direct effect.
This judgment will surely be remembered also for containing one of the best and inadvertently funny one line paragraphs:
"As Community law now stands, there is none."