Artikel 7.1 i varumärkesdirektivet - en studie av den varumärkesrättsliga konsumtionsprincipen
(2002)Department of Law
- Abstract
- The conditions for legality of European Community action raise the essential issue as to the limits of Community competence. It is plain that the Community only holds those powers it has been attributed under the Treaty. However, to delimit those powers has proven to be very difficult. This is problem is widely recognised and will be dealt with at the IGC in 2004. While the Community is founded upon the principle of attributed competences, there is a fundamental limit on the activities of the institutions. According to this principle, the Community may only adopt binding measures in those areas where the Member States have expressly transferred powers to the Community. Where the Treaty does not contain a legal basis provision, the... (More)
- The conditions for legality of European Community action raise the essential issue as to the limits of Community competence. It is plain that the Community only holds those powers it has been attributed under the Treaty. However, to delimit those powers has proven to be very difficult. This is problem is widely recognised and will be dealt with at the IGC in 2004. While the Community is founded upon the principle of attributed competences, there is a fundamental limit on the activities of the institutions. According to this principle, the Community may only adopt binding measures in those areas where the Member States have expressly transferred powers to the Community. Where the Treaty does not contain a legal basis provision, the Community has no power to act and any acts issued ultra vires may be annulled on grounds of lack of competence in Article 230 EC Treaty. However, the Court has previously applied a flexible notion of this fundamental limit to evolve the Community legal order through inventive legal doctrines and wide interpretation of the Treaty provisions. Hence, the Community acts that have been found illegal on ultra vires grounds are on the whole few and often rather insignificant. The Court has consequently been criticised of not taking the limits of Community competences seriously in regards to the Member States. The Court has conversely been more inclined to intervene on issues concerning the division of powers between the institutions. The principle of attributed competences also provides (implicitly) that any Community institution may not usurp any powers which the Treaty has attributed to another institution since the Community may only act when authorised by the Treaty. The Court has generally been prepared to engage a more intense scrutiny when a certain measure, alleged to be ultra vires, has appeared to affect the concept of institutional balance negatively, and has not shunned from utilizing its power of review in such cases to examine Community measures which are not 'acts' per se. During the 1990's the number of successful actions against ultra vires acts duly has increased, which seems to indicate that the recent changes in the surrounding political landscape has not passed the Court entirely unnoticed. Hence, although the Court has previously been disinclined to place limits on the wide-ranged Treaty articles it did so in the Tobacco Advertising case. The Court explicitly referred to the principle of attributed competences as to emphasize the limitations entrenched in the legal basis of Article 95 EC Treaty. Perhaps more important, it broke a long and unfortunate streak as it was the first time the Court annulled a Council act of any real importance. (Less)
Please use this url to cite or link to this publication:
http://lup.lub.lu.se/student-papers/record/1563029
- author
- Widjer, Kristin
- supervisor
- organization
- year
- 2002
- type
- H3 - Professional qualifications (4 Years - )
- subject
- keywords
- EG-rätt, Immaterialrätt
- language
- Swedish
- id
- 1563029
- date added to LUP
- 2010-03-08 15:55:31
- date last changed
- 2010-03-08 15:55:31
@misc{1563029,
abstract = {{The conditions for legality of European Community action raise the essential issue as to the limits of Community competence. It is plain that the Community only holds those powers it has been attributed under the Treaty. However, to delimit those powers has proven to be very difficult. This is problem is widely recognised and will be dealt with at the IGC in 2004. While the Community is founded upon the principle of attributed competences, there is a fundamental limit on the activities of the institutions. According to this principle, the Community may only adopt binding measures in those areas where the Member States have expressly transferred powers to the Community. Where the Treaty does not contain a legal basis provision, the Community has no power to act and any acts issued ultra vires may be annulled on grounds of lack of competence in Article 230 EC Treaty. However, the Court has previously applied a flexible notion of this fundamental limit to evolve the Community legal order through inventive legal doctrines and wide interpretation of the Treaty provisions. Hence, the Community acts that have been found illegal on ultra vires grounds are on the whole few and often rather insignificant. The Court has consequently been criticised of not taking the limits of Community competences seriously in regards to the Member States. The Court has conversely been more inclined to intervene on issues concerning the division of powers between the institutions. The principle of attributed competences also provides (implicitly) that any Community institution may not usurp any powers which the Treaty has attributed to another institution since the Community may only act when authorised by the Treaty. The Court has generally been prepared to engage a more intense scrutiny when a certain measure, alleged to be ultra vires, has appeared to affect the concept of institutional balance negatively, and has not shunned from utilizing its power of review in such cases to examine Community measures which are not 'acts' per se. During the 1990's the number of successful actions against ultra vires acts duly has increased, which seems to indicate that the recent changes in the surrounding political landscape has not passed the Court entirely unnoticed. Hence, although the Court has previously been disinclined to place limits on the wide-ranged Treaty articles it did so in the Tobacco Advertising case. The Court explicitly referred to the principle of attributed competences as to emphasize the limitations entrenched in the legal basis of Article 95 EC Treaty. Perhaps more important, it broke a long and unfortunate streak as it was the first time the Court annulled a Council act of any real importance.}},
author = {{Widjer, Kristin}},
language = {{swe}},
note = {{Student Paper}},
title = {{Artikel 7.1 i varumärkesdirektivet - en studie av den varumärkesrättsliga konsumtionsprincipen}},
year = {{2002}},
}