COMPETITION • EUROPEAN LAW • IMPACT OF INTELLECTUAL PROPERTY RIGHTS
Article 34 TFEU attempts, in nuanced terms, to reconcile free trade between Member States and the protection of intellectual property rights. In principle, this protection justifies quantitative restrictions on imports or exports unless it results from them an arbitrary discrimination or a disguised restriction on trade between Member States (Article 36 TFEU). Where the existence of intellectual property rights is not challenged by Articles 34 et seq. TFEU, the exercise of such rights must not prevent any free movement beyond the requirement of safeguarding rights which constitute the specific subject-matter of the protection. The specific subject-matter consists in guaranteeing the proprietor use of the intellectual property right for first placing the product on the internal market. The use of an exclusive right is then limited to first placing the product within the internal market. Where products have been marketed by or with the consent of the proprietor of the intellectual property right in one of the EU Member States, the rule of exhaustion prevents such proprietor from opposing the import or marketing of the product in the territory of another Member State. The theory of exhaustion of the right therefore enables the combination of the prerogatives of the proprietor of the intellectual property right with the objectives of the Treaty.
