Plomer, A. (2012) After Brüstle: EU Accession to the ECHR and the Future of European Patent Law. Queen Mary Journal of Intellectual Property, 2 (2). 110 - 135. ISSN 2045-9807
Abstract
The aim of the Directive on Biotechnological Inventions 1998 1 was to harmonize national patent laws in order to bolster Europe's competitiveness in fields involving biotechnological applications. From the beginning, the Directive was met with a barrage of opposition from politicians, political lobbies, religious organizations and academics who called for the need to ensure that ethical principles would not be sacrificed on the altar of commerce and market forces. 2 Human rights were specifically invoked to justify the importation of moral exclusions into the Directive. 3 Yet, little thought was given at the time to the implications and the potential tensions created by the lack of integration between the European Union (EU) and the Council of Europe (CoE) legal orders and courts. This paper analyses and evaluates how the historical tensions are manifested in the paradoxical judgment of the Grand Chamber of the European Court of Justice (CJEU) in the Brüstle case. 4 It is suggested that the CJEU ruling represents a disproportionate interference with the autonomy of Member States and is inconsistent with the degree of autonomy vested in Member States by the European Convention legal order. More generally, the paper uses the Brüstle case as a lens through which to analyse and evaluate the potential impact of the current proposal for the EU's accession to the European Convention on Human Rights (ECHR) on the resolution of emerging tensions.
Metadata
Item Type: | Article |
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Authors/Creators: |
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Copyright, Publisher and Additional Information: | © Plomer 2012. The definitive, peer-reviewd and edited version of this article is published in Queen Mary Journal of Intellectual Property, vol. 2, issue 2, pp. 110-135 (2012) |
Keywords: | EU Directive on Biotechnological Inventions 98/44/EC; moral exclusions; Article 6(2)(c); embryonic stem cells; human dignity; Brüstle; EU accession to the ECHR; European Convention on Human Rights; EU Charter of Fundamental rights; Council of Europe's Convention on Human Rights and Biomedicine |
Dates: |
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Institution: | The University of Sheffield |
Academic Units: | The University of Sheffield > Faculty of Social Sciences (Sheffield) > School of Law (Sheffield) |
Depositing User: | Symplectic Sheffield |
Date Deposited: | 12 Nov 2015 14:59 |
Last Modified: | 12 Nov 2015 16:10 |
Published Version: | http://dx.doi.org/10.4337/qmjip.2012.02.01 |
Status: | Published |
Publisher: | Edward Elgar Publishing |
Refereed: | Yes |
Identification Number: | 10.4337/qmjip.2012.02.01 |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:89386 |