IDEAS home Printed from https://ideas.repec.org/p/erp/euirsc/p0270.html
   My bibliography  Save this paper

From Autonomy to Full Deference in the Relationship between the EFTA Court and the ECJ: The Case of the International Exhaustion of the Rights Conferred by a Trademark

Author

Listed:
  • Daniele Gallo

Abstract

Abstract: Differently from other international tribunals set up in the context of regional economic integrations, the existing relationship between the EFTA Court and the ECJ, having been institutionalized at a primary level by the EEA Agreement itself, is naturally apt to give rise to a structural, natural and original interdependence between the two phenomena of mirror jurisdiction and mirror legislation. The relevance of the ECJ case law for the EFTA case law is not limited to the references to the former court case law, which can be found in all the advisory opinions and in all the judgments given up to now by the latter. It also and above all reveals itself in the constant adoption both of the reasoning made by the ECJ and of the constitutional principles of EU law. By putting on the same level its jurisprudence and that of the ECJ, the EFTA Court attributes to both of them the same efficacy in terms of judicial precedent. This does not mean that the EFTA Court has restricted itself to passively adopt the ECJ case law. EFTA judges have had a relevant influence on the ECJ in the course of the years. In doing so the EFTA Court has built up a strong judicial dialogue with the ECJ, according to the EEA principle that the interpretation and application of EEA law and EU law must be carried out in full deference to the independence of courts. In some other cases the EFTA Court has even developed reasonings which seem to underline a detachment of the former from the criteria and principles adopted by the ECJ. In this context, the L’Oréal case represents the first and until now only case in which the EFTA Court had to decide on a question which had already been the subject of an explicit conflict with the ECJ. The issue at stake is the admissibility of the principle of international exhaustion of the rights conferred by a trademark, that consequently functions as appropriate sedes materiae for the purpose of clarifying the degree of autonomy characterizing the EFTA Court vis-à-vis the ECJ and its case law. This working paper aims at explaining why and to what extent the choice made and the reasoning developed by the EFTA Court to abandon its previous case law in favour of the ECJ case law in the L’Oréal case seems to be more inspired by political considerations than by a purely legal reasoning. The analysis will then show the reasons why L’Oréal goes beyond the issue of the international exhaustion of the rights conferred by a trade mark and concerns structural and institutional questions pertaining to the legal and economic aims of the EEA law and the EU system. It will be finally underlined in what sense the EEA Agreement must be interpreted and construed as meaning that the uniformity and consistency in the case law of the two courts have to be always and in any case prioritized, notwithstanding the different aims and the lower degree of integration of the EEA system in comparison with the EU legal that seemed to constitute, until L’Oréal, the only exception to the objective of legal homogeneity acknowledged by the EEA Agreement.

Suggested Citation

  • Daniele Gallo, 2010. "From Autonomy to Full Deference in the Relationship between the EFTA Court and the ECJ: The Case of the International Exhaustion of the Rights Conferred by a Trademark," EUI-RSCAS Working Papers 78, European University Institute (EUI), Robert Schuman Centre of Advanced Studies (RSCAS).
  • Handle: RePEc:erp:euirsc:p0270
    as

    Download full text from publisher

    File URL: http://hdl.handle.net/1814/14675
    File Function: Full text
    Download Restriction: no

    File URL: http://cadmus.eui.eu/bitstream/handle/1814/14675/RSCAS_2010_78.pdf
    File Function: Full text
    Download Restriction: no

    References listed on IDEAS

    as
    1. Alberto Alesina & Enrico Spolaore, 1997. "On the Number and Size of Nations," The Quarterly Journal of Economics, Oxford University Press, vol. 112(4), pages 1027-1056.
    2. Jonathan Isham & Michael Woolcock & Lant Pritchett & Gwen Busby, 2005. "The Varieties of Resource Experience: Natural Resource Export Structures and the Political Economy of Economic Growth," World Bank Economic Review, World Bank Group, vol. 19(2), pages 141-174.
    3. Yongzheng Yang & Sanjeev Gupta, 2005. "Regional Trade Arrangements in Africa; Past Performance and the Way Forward," IMF Working Papers 05/36, International Monetary Fund.
    4. Philippe Martin & Thierry Mayer & Mathias Thoenig, 2008. "Civil Wars and International Trade," Journal of the European Economic Association, MIT Press, pages 541-550.
    5. Fearon, James D., 1995. "Rationalist explanations for war," International Organization, Cambridge University Press, vol. 49(03), pages 379-414, June.
    6. World Bank, 2000. "Can Africa Claim the 21st Century?," World Bank Publications, The World Bank, number 22962.
    7. Alberto Alesina & Beatrice Weder, 2002. "Do Corrupt Governments Receive Less Foreign Aid?," American Economic Review, American Economic Association, vol. 92(4), pages 1126-1137, September.
    8. Antonio Ciccone, 2011. "Economic Shocks and Civil Conflict: A Comment," American Economic Journal: Applied Economics, American Economic Association, vol. 3(4), pages 215-227, October.
    9. Shang-Jin Wei, 2000. "How Taxing is Corruption on International Investors?," The Review of Economics and Statistics, MIT Press, pages 1-11.
    10. Ciccone, Antonio, 2008. "Transitory Economic Shocks and Civil Conflict," CEPR Discussion Papers 7081, C.E.P.R. Discussion Papers.
    11. Alexander Keck & Roberta Piermartini, 2008. "The Impact of Economic Partnership Agreements in Countries of the Southern African Development Community," Journal of African Economies, Centre for the Study of African Economies (CSAE), vol. 17(1), pages 85-130, January.
    12. Dani Rodrik, 1998. "Trade Policy and Economic Performance in Sub-Saharan Africa," NBER Working Papers 6562, National Bureau of Economic Research, Inc.
    13. Anthony J. Venables, 2003. "Winners and losers from regional integration agreements," Economic Journal, Royal Economic Society, vol. 113(490), pages 747-761, October.
    14. Jong-Wha Lee & Ju Hyun Pyun, 2016. "Does Trade Integration Contribute to Peace?," Review of Development Economics, Wiley Blackwell, vol. 20(1), pages 327-344, February.
    15. Baliamoune-Lutz, Mina & Ndikumana, Léonce, 2007. "The Growth Effects of Openness to Trade and the Role of Institutions: New Evidence from African Countries," MPRA Paper 6189, University Library of Munich, Germany.
    16. Céline Carrère, 2004. "African Regional Agreements: Impact on Trade with or without Currency Unions," Journal of African Economies, Centre for the Study of African Economies (CSAE), vol. 13(2), pages 199-239, June.
    17. Vallings, Claire & Moreno-Torres, Magui, 2005. "Drivers Of Fragility: What Makes States Fragile?," PRDE Working Papers 12824, Department for International Development (DFID) (UK).
    18. Schiff, Maurice & Winters, L Alan, 1998. "Regional Integration as Diplomacy," World Bank Economic Review, World Bank Group, vol. 12(2), pages 271-295, May.
    19. Alemayehu Geda & Haile Kebret, 2008. "Regional Economic Integration in Africa: A Review of Problems and Prospects with a Case Study of COMESA," Journal of African Economies, Centre for the Study of African Economies (CSAE), vol. 17(3), pages 357-394, June.
    20. Reuven Glick & Alan M. Taylor, 2010. "Collateral Damage: Trade Disruption and the Economic Impact of War," The Review of Economics and Statistics, MIT Press, vol. 92(1), pages 102-127, February.
    21. Mina Baliamoune-Lutz, 2007. "Institutions, Trade, and Social Cohesion in Fragile States," ICER Working Papers 24-2007, ICER - International Centre for Economic Research.
    22. Padamja Khandelwal, 2004. "Comesa and Sadc; Prospects and Challenges for Regional Trade Integration," IMF Working Papers 04/227, International Monetary Fund.
    23. Little, Peter, 2005. "Unofficial Trade When States are Weak: The Case of Cross-Border Commerce in the Horn of Africa," WIDER Working Paper Series 013, World Institute for Development Economic Research (UNU-WIDER).
    24. Garfinkel, Michelle R. & Skaperdas, Stergios & Syropoulos, Constantinos, 2008. "Globalization and domestic conflict," Journal of International Economics, Elsevier, vol. 76(2), pages 296-308, December.
    25. Arvind Subramanian & Natalia T. Tamirisa, 2003. "Is Africa Integrated in the Global Economy?," IMF Staff Papers, Palgrave Macmillan, vol. 50(3), pages 1-2.
    26. Shang-Jin Wei, 1997. "Why is Corruption So Much More Taxing Than Tax? Arbitrariness Kills," NBER Working Papers 6255, National Bureau of Economic Research, Inc.
    27. S. Brock Blomberg & Gregory D. Hess, 2006. "How Much Does Violence Tax Trade?," The Review of Economics and Statistics, MIT Press, vol. 88(4), pages 599-612, November.
    28. Bouet, Antoine & Laborde, David & Mevel, Simon, 2007. "Searching for an alternative to economic partnership agreements:," Research briefs 10, International Food Policy Research Institute (IFPRI).
    29. Jose G. Montalvo & Marta Reynal-Querol, 2007. "Fighting against Malaria: Prevent Wars while Waiting for the "Miraculous" Vaccine," The Review of Economics and Statistics, MIT Press, vol. 89(1), pages 165-177, February.
    30. Javorcik, Beata & Wei, Shang-Jin, 2001. "Corruption and Foreign Direct Investment: Firm-Level Evidence," CEPR Discussion Papers 2967, C.E.P.R. Discussion Papers.
    31. F. Andreatta & P. G. Ardeni & A. Pallotti, 2000. "Swords and Plowshares: Regional Trade Agreements and Political Conflict in Africa," Working Papers 387, Dipartimento Scienze Economiche, Universita' di Bologna.
    32. Sachs, Jeffrey D & Warner, Andrew M, 1997. "Sources of Slow Growth in African Economies," Journal of African Economies, Centre for the Study of African Economies (CSAE), vol. 6(3), pages 335-376, October.
    33. Schiff, Maurice & Wang, Yanling & Olarreaga, Marcelo, 2002. "Trade-related technology diffusion and the dynamics of North-South and South-South integration," Policy Research Working Paper Series 2861, The World Bank.
    34. Brenton, Paul & Hoppe, Mombert & Newfarmer, Richard, 2008. "Economic partnership agreements and the export competitiveness of Africa," Policy Research Working Paper Series 4627, The World Bank.
    Full references (including those not matched with items on IDEAS)

    More about this item

    Keywords

    European Court of Justice;

    NEP fields

    This paper has been announced in the following NEP Reports:

    Statistics

    Access and download statistics

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:erp:euirsc:p0270. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Valerio PAPPALARDO). General contact details of provider: http://edirc.repec.org/data/rsiueit.html .

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.