Question 1

A Member State is very concerned about the volume of obscene materials being exported from other Member States to that State. Which of the following grounds set out in Article 36 TFEU can be successfully relied upon by the government of the Member State concerned?

A) The requirements of public policy.
B) The protection of public morality in a situation where national law prohibits the production and sale of obscene materials in the Member State concerned.
C) The protection of public morality in a situation where national law allows the production and sale of obscene materials in the concerned Member State but in fact no such materials have ever been produced in that State.

B

Accepted Answer

Article 36 TFEU allows Member States to derogate from the free movement of goods within the EU for reasons such as the protection of public morality, especially if the national law of the Member State prohibits the production and sale of obscene materials. This provides a legal basis for the government to restrict imports of such materials to protect public morality in line with its national legislation.

Question 2

In which of the following circumstances may a Member State be allowed to rely on the precautionary principle?&#10;A) When the potentially dangerous effects of a phenomenon, product or process have been identified by a scientific and objective evaluation, but this evaluation does not allow the risk to be determined with sufficient certainty.&#10;B) When there is a genuine risk that the product in question endangers public health.&#10;C) When there is a possibility based on a hypothesis, which may turn out to be flawed, that the product in question might endanger public health but scientific research is contradictory and inconclusive.

Accepted Answer

The precautionary principle can be relied upon when there is scientific uncertainty, but potentially dangerous effects have been identified. In this case, a scientific evaluation has not allowed the risk to be determined with sufficient certainty. B and C have specific conditions that must be met before the precautionary principle can be applied.

Question 3

In which of the following situations are the intellectual property rights of patentee A exhausted?&#10;A) Patentee A holds a patent in Member State A. He has manufactured and marketed the protected products in Member State A. B, who has manufactured in Member State B products protected by A&#10;B) Patentee A has registered a patent in Member State A, patentee B has registered a patent in Member State B. The patented products are similar in all respects. A and B are legally and economically independent of each other.&#10;C) Patentee A holds a patent in Member State A and has granted a licence to B, to manufacture protected products in Member State B. C, a parallel importer (who has no economic or legal links with A or B) decides to export the protected products manufactured in Member State B by B to Member State A (C hopes to make a profit because in Member State A the protected products sell for higher prices than in Member State B)

Accepted Answer

In situation C, the intellectual property rights of patentee A are considered exhausted because A has authorized the manufacture of the protected products in Member State B through a licensing agreement. When these products are then imported back into Member State A, A's rights are exhausted because the products were legally put on the market in Member State B with A's consent. This allows for the parallel importation of the products back into Member State A without infringing A's patent rights.

Question 4

In which of the following situations are the intellectual property rights of A, a holder of a trade mark, exhausted?&#10;A) A registered his trade mark in Member State A and has granted a licence to B, to manufacture protected products in Member State B. C, a parallel importer (who has no economic or legal links with A or B) decides to export the protected products manufactured in Member State B by B to Member State A and then to advertise them in accordance with the methods which are customary to his sector of trade.&#10;B) A registered his trade mark in Member State A and has granted a licence to B, to manufacture protected products in State B, which is not a Member State of the EU. B decides to export the protected products manufactured in State B by B to Member State A.&#10;C) A registered his trade mark in Member State A and has granted a licence to B, to manufacture protected products in State B, which is not a Member State of the EU. C, a parallel importer (who has no economic or legal links with A or B) decides to export the protected products manufactured in State B by B to Member State A.

Accepted Answer

In situation A, the intellectual property rights of A are exhausted because A granted a license to B to manufacture protected products in Member State B. Once the products are legally manufactured by B with A's permission, they can be freely sold within the EU. The fact that the parallel importer C has no economic or legal links with A or B is not relevant to the exhaustion of A's intellectual property rights.

Deck 19: Derogations From Articles 34 and 35 TFEU Listed in Article 36TFEU and Justifications Based on Mandatory Requirements