ECJ JUDGMENT OF 11 SEPTEMBER 2007 – MERCK GENERICOS-PRODUTOS FARMACÊUTICOS, CASE C-431/05 – WORLD TRADE ORGANISATION – AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS) – PATENTS – JURISDICTION OF THE COURT – DIRECT EFFECT

Abstract

In this case the ECJ deals with the question of its jurisdiction to interpret Article 33 of the TRIPs Agreement under a preliminary ruling. For the Court, since the Community has not yet exercised its powers in the sphere of patents or, at the very least, at internal level, that exercise has not to date been of sufficient importance, one should conclude that Article 33 of the TRIPs Agreement forms part of a sphere in which, at the present point in the development of Community law, the Member States remain principally competent. In these circumstances, as Community legislation in the sphere of patents now stands, it is not contrary to Community law for Article 33 of the TRIPs Agreement to be directly applied by a national court subject to the conditions provided for by national law. This comment suggests that this case-law clarifies the basis and scope of the ECJ’s jurisdiction. It is plausible to understand that the Court will never decline its formal jurisdiction on admissibility, which constitutes the foundation of the monopoly of the Court to decide on the vertical distribution of powers between the EC and its Members States. The jurisdiction of the Court to exercise its interpretation on a particular subject matter, on the other hand, depends on the existence of relevant Community law.