Intellectual property rights have an obvious propensity to interfere with principle of free movement. There is a conflict between that principle and the protection of exclusive rights which are limited to the territory of a Member State.
There are 4 fundamental freedoms:
-services (articles from 48-73 of Rome Treaty1957)
-persons (articles from 48-73 of Rome Treaty 1957)
-goods (articles from 9-37 of Rome Treaty 1957)
-capital (articles from 48-73 of Rome Treaty 1957)
Depends on the field : trade marks, copyright, design rights…
If the owner of the right were allowed to invoke in order to oppose the importation and sale of goods which were lawfully on the market in another Member State, that wouldamount to a measure equivalent in effect to a quantitative restriction on imports within the meaning of Article 28 of the Teatry.
The compatibility of the measure with EC law would depend on whether it could be justified under Article 30 of the Teatry.
Intellectual property rights can also come into conflict with the freedom to provide services
X has the patent in Germany but notin Italy ( for different reasons ).
Y makes products incorporating the patented invention in Italy and markets them there.
Z buys the products and exports them to W in Germany.
W, who may know nothing about X’s patents, is sued by X for patent infringement.
If X’s action succeeds and W is prevented from importing the goods into Germany, that will amount to restricting the free movement ofgoods between Member States.
But if X is unable to obtain and injunction against infringing goods imported from Italy, the value of his patent will be seriously undermined.
Any exclusive right limited to the territory a Member State has the potential to come into conflict with the principle of free movement.
If the owner of the right were allowed to invoke it in order to oppose the importationand sale of goods which were lawfully on the market in another Member State, that would amount to a measure equivalent in effect to a quantitative restriction on imports within the meaning of Article 28 of the Treaty. The compatibility of the measure with EC law would depend on whether it could be justified under Art. 30 of the Treaty.
(the main articles about goods)
*Art. 28 EC Treaty :"Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States".
*Art. 29 EC Treaty :
"Quantitative restrictions on export and all measures having equivalent effect, shall be prohibited between Member States".
*Art. 30 EC Treaty :
“The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exportsor goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historical or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrarydiscrimination or a disguised restriction on trade between Member States.”
Free movement of goods(Definition): Fusion of the economies of Member States and an integrated market in which the factors of production, can move freely, without let or hindrance.
But harmonization is a slow process and may not even perceived as desirable by everyone. It follows that obstacles resulting fromdisparities in national legislation will continue to hamper trade between Member States for a long time to come.
Since 1979 the Court has delivered many judgments confirming the principle that goods manufactured and marketed in a Member State in accordance with the local legislation may be imported into any other Member State unless some mandatory requirement justifies their exclusion.