European Union: Intellectual Property Under The Charter: Are The Court's Scales Properly Calibrated?

Co-authored by Peter Oliver*


Unusually, the Charter of Fundamental Rights of the EU contains a provision (Art. 17(2)) expressly recognizing the right to the protection of intellectual property. With the notable exception of Luksan, the ECJ case law on this provision relates to cases in which the right to IP is pitted against other Charter rights. The Court has been driven to seek a "fair balance" between the rights at stake, an exercise which can only be carried out on a case-by-case basis, thus engendering considerable legal uncertainty. What is more, in several cases the Court has given more limited guidance than it might have done; the recent ruling in McFadden is encouraging, however. But the Court by no means bears sole responsibility for this legal uncertainty: courts are ill equipped to solve such complex policy issues; and, had it not been for the numerous gaps and ambiguities in the relevant EU legislation, the Court would not have had to step in so frequently.

1. Introduction

Recent years have seen a raft of landmark judgments on intellectual property ("IP") decided by the Court of Justice, in which the Charter of Fundamental Rights of the EU1 has been raised.2 The occasion is therefore ripe to explore the Court's approach to IP as a fundamental right, and in particular to consider whether that approach diverges from its position regarding other forms of property.

The benefits of IP cannot be seriously contested.3 In a recent Communication, the Commission has written: "Intellectual property-intensive sectors account for 39% of GDP and for 35% of jobs in the EU...A recent study by the Office for Harmonisation in the Internal Market (OHIM) has shown that only 9%of SMEs in Europe own IP rights, but that – on average – those SMEs that do own such rights generate 32% more revenue per employee than those that do not."4 On the other hand, there is a school of thought which advocates paring back the scope of IP, especially when it comes to copyright.5 One leading exponent of this view is Harvard Professor Lawrence Lessig.6 In Europe, this movement has led to the establishment of Pirate Parties, which have enjoyed some success in Germany and Sweden and led to the election of one Member of the European Parliament.7 This is part of a much broader debate about how far-reaching fundamental rights of an economic nature are or should be.

At all events, as we shall see, under the ECHR and in EU law, there is no room for the claim made by the United Nation's Special Rapporteur on Cultural Rights that "intellectual property rights are not human rights":8 the Grand Chamber of the European Court of Human Rights has held that Article 1 of Protocol 1 ("A1P1") to the ECHR on the right to property covers IP;9 and Article 17(2) of the EU Charter of Fundamental Rights ("the Charter") states: "Intellectual property shall be protected."

Every Bill of Rights worthy of the name recognizes the right to property. At the same time, by definition this right can never be absolute like hard-core rights such as the rights to human dignity10 and freedom from torture.11 Most fundamental rights are subject to exceptions, but the right to property is "relative" par excellence. That is not least because "in this world nothing can be said to be certain, except death and taxes" (thus quoth Benjamin Franklin). This could explain the unusually broad public interest exceptions built into the provisions laying down the right to property in A1P1 and Article 17(1) of the Charter. As one would expect, IP is generally subject to these exceptions like other forms of property.12

The structure of the present article reflects the fact that the right to IP is so closely intertwined with the right to property generally – both under A1P1 and under Article 17 – that it is impossible to consider the former without the latter. Before considering Article 17 of the Charter, which concerns the right to property, we must first focus our attention on the close links between the ECHR and the Charter (section 2); and then we shall examine A1P1 (section 3). Only after that will we turn to Article 17 itself (section 4). In section 5, we shall consider very briefly whether IP is treated differently from other forms of property. Our conclusions are set out in section 6.

2. The close links between the Charter and the ECHR

As the reader will be aware, the Court of Justice first alluded to the ECHR in Nold13 back in 1974, just eleven days after it was ratified by the last Member State, namely France; and since then the Court has repeatedly held that the ECHR enjoys "special significance" in the European Union.14 Consequently, until the Charter came into its own, the case law of the Court of Justice on the right to property was drawn in particular from the jurisprudence of its counterpart in Strasbourg on A1P1.

Moreover, according to Article 52(3) of the Charter, insofar as rights enshrined in that instrument correspond to rights guaranteed by the ECHR, "the meaning and scope" of those rights are the same, although that does not prevent Union law "providing more extensive protection". Finally, Article 6(3) TEU now provides: "Fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law." Accordingly, the ECHR must necessarily be the starting-point for an examination of the right to property (intellectual and otherwise) in Union law.

As we shall see in section 4.3 below, there is at least one judgment of the ECJ which appears to run counter to the case law of its counterpart in Strasbourg. Moreover, the ECJ has frequently decided cases in this field without referring to that case law, and sometimes without any mention of A1P1 itself. Especially since the entry into force of the Treaty of Lisbon, that is scarcely surprising; and it does not follow necessarily that in all the judgments concerned the Court has disregarded the case law of the ECtHR.

To read this article in full, please click here.

Originally published by Common Market Law Review, Wolters Kluwer.


* Respectively: visiting Professor, Université Libre de Bruxelles, and Barrister, Monckton Chambers; and Partner,Arnold & Porter (UK) LLP, and visiting Professor, University College London. The authors wish to thank Thomas Bombois, Enrico Bonadio, Jonathan Griffiths and Philippa Watson for their advice and comments on an earlier version of this article, but responsibility for any errors rests with the authors alone. All websites last visited 29 Jan. 2017.

1. The current version of the Charter is published in O.J. 2007, C 303/1 and again in O.J. 2012, C 326/391.

2. E.g. Case C-275/06, Promusicae v. Telefónica, EU: C:2008:54; Case C-70/10, Scarlet Extended, EU: C:2011:771; Case C-277/10, Luksan v. van der Let, EU: C:2012:65; Case C-360/10, SABAM v. Netlog NV, EU: C:2012:85; Case C-510/10, DR and TV2 Danmark A/S v. NCB – Nordisk Copyright Bureau, EU: C:2012:244; Case C-283/11, Sky Österreich, EU: C:2013:28; Case C-314/12, UPC Telekabel Wien v. Constantin Film Verleih, EU: C:2014:192; Case C-201/13, Deckmyn v. Vandersteen, EU: C:2014:2132; Case C-580/13, Coty Germany v. Stadtsparkasse Magdeburg, EU: C:2015:485; Case C-170/13, Huawei Technologies Co v. ZTE Corp, EU: C:2015:477; Case C-484/14, McFadden v. Sony Music, EU: C:2016:689.

3. IP covers a broad range of rights, but the cases primarily consider patents (Case 15/74, Centrafarm v. Sterling Drug, EU: C:1974:114), trade marks (Case 16/74, Centrafarm v. Winthrop, EU: C:1974:115), copyright (Case 55/80, Musik-Vertrieb Membran v. GEMA, EU: C:1981:10), design rights (Case 144/81, Keurkoop v. Nancy Kean Gifts, EU: C:1982:289) and geographical denominations (Case C-47/90, Delhaize v. Promalvin, EU: C:1992:250 and Case C-3/91, Exportur v. LOR, EU: C:1992:420). Whether business secrets should be regarded as intellectual property is the subject of some controversy. For the purposes of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, O.J. 1994, L 336/214), they are treated as such: Arts. 1(2) and 39. On the other hand, recitals 1, 2 and 39 in the preamble to Directive 2016/943 of the European Parliament and the Council on the protection of trade secrets (O.J. 2016, L 157/1) clearly suggest that for the purposes of that instrument the contrary applies. Considerations of space preclude an examination of the case law on business secrets within the confines of this article.

4. Communication on Upgrading the Single Market, COM(2015)550 final, pp. 14–15.

5. See generally Torremans, para 17(2).05 in Peers, Hervey, Kenner and Ward (Eds.), The EU Charter of Fundamental Rights – A Commentary (Beck/Hart Publishing/ Nomos, 2014).

6. E.g. Code Version 2.0 (Basic Books, 2006), especially Chs. 1 and 10, Remix: Making Art and Commerce Thrive in the Hybrid Economy (Bloomsbury Academic, 2008), especially the Conclusion, and "In Defense of Piracy", Wall Street Journal 11 Oct. 2011 ( articles/SB122367645363324303). See also Landes and Posner, The Economic Structure of Intellectual Property Law (Harvard University Press, 2003).

7. The MEP in question, Julia Reda, was the rapporteur for the Parliament's resolution of 9 July 2015 on the reform of EU copyright law ( Particularly heated controversy surrounded the "freedom of panorama" (i.e. the right of third parties to disseminate photographs or other images of buildings or works of art permanently located in public places) which some MEPs have sought to remove: ( See Politico 3 July 2015 ( In view of the controversy surrounding this issue (together with some other copyright issues), the Commission launched a public consultation on 23 Mar. 2016, (, which attracted 6203 replies ( This ultimately led to the adoption of a Commission proposal for a new directive on copyright in the information society COM(2016)596 final; see the accompanying press release of 14 Sept. 2016 (, although this does not mention "freedom of panorama".

8. Statement made on 11 Mar. 2015 at the 28th session of the Human Rights Council (

9. ECtHR, Anheuser-Busch v. Portugal, Appl. No. 73049/01, judgment of 11 Jan. 2007.

10. This follows clearly from Art. 1 of the Charter, according to which human dignity is "inviolable".

11. Case C-404/15, Aranyosi, EU: C:2016:198, para 86.

12. Put another way, as the Delhi High Court recently held, "copyright, specially in literary works, is thus not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations." (Oxford University v. Rameshwari Photocopy Services, 16 Sept. 2016, para 80) (

13. Case 4/73, Nold v. Commission, EU: C:1974:51, para 13.

14. E.g. Case C-274/99 P, Connolly v. Commission, EU: C:2001:127, para 37; Case C-94/00, Roquette Frères v. Directeur général de la concurrence, EU: C:2002:603, para 25; Joined Cases C-20 &64/00, BookerAquaculture v. Scottish Ministers, EU: C:2003:397, para 65 and Joined Cases C-402 &415/05 P, Kadi andAl Barakaat International Foundation v. Council and Commission (Kadi I), EU: C:2008:461, para 283.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.