Volume 7 Issue 2 2015
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VOLUME 7 ISSUE 2 2015 ISSN: 2036-5438 VOL. 7, ISSUE 2, 2015 TABLE OF CONTENTS EDITORIAL A New Start for Perspectives on Federalism GIUSEPPE MARTINICO AND ROBERTO CASTALDI I-V ESSAYS Patenting in Europe: The Jurisdiction of De Gaulle, the “Empty Chair Crisis” and the CJEU over European Patent Law the European Movement MARI MINN E- 1-28 PAOLO CARAFFINI E-163-189 Belgian Federalism after the Sixth State Reform JURGEN GOOSSENS AND PIETER CANNOOT E- 29-55 An Internationally Intelligible Principle: Comparing the Nondelegation Doctrine in the United States and European Union EDWARD GRODIN E- 56-84 Ne bis in idem: a separation of acts in transnational cases MÁRK NÉMEDI E-85-115 International Dictatorship or International Democracy. A Discussion of Albert Camus’ 1946 Considerations TOMMASO VISONE E-116-132 Article 260 TFEU Sanctions in Multi- Tiered Member States WERNER VANDENBRUWAENE, PATRICIA POPELIER AND CHRISTINA JANSSENS E-133-162 ISSN: 2036-5438 A New Start for Perspectives on Federalism by Giuseppe Martinico and Roberto Castaldi Perspectives on Federalism, Vol. 7, issue 2, 2015 Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E - I Abstract Perspectives on Federalism is closing its seventh year and its issue 2/2015 confirms the interdisciplinary nature of this intellectual enterprise. This issue is a very rich one, as it includes legal, historical and philosophical contributions. In spite of the evident diversities of these articles, we can identify three main connecting themes: latest developments in EU law, history of thought and European integration, and constitutional developments in national and supranational contexts. Key-words EU law, history of European integration, constitutional developments, interdisciplinarity Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E - II Perspectives on Federalism is closing its seventh year and its issue 2/2015 confirms the interdisciplinary nature of this intellectual enterprise. Over the years, our Journal has grown quickly, thanks to the dedication and commitment of our previous Editor in Chief, Umberto Morelli, and to the steady support of the Centro Studi sul Federalismo and the Compagnia di San Paolo. We have published a number of relevant contributions and hosted some very rich special issues, entrusted to established or young scholars in Federal Studies, who have served as guest editors (see, for instance, the special issues edited by Søren Dosenrode - Vol. 2, issue 3, 2010- and that by Paulus Blokker and Werner Reutter, Vol. 7 issue 1, 2015, among others). We have also published the proceedings of two international symposia of the IACL (International Association of Constitutional Law) working group on “subnational- constitutions-in-federal-quasi-federal-constitutional-states” (respectively, Vol. 4, Issue 2, 2012 and Vol. 6, Issue 2, 2014). The Editors in chief of the Journal are also happy to announce a very important achievement: we have finally remedied its backlog and recently signed an important agreement with de Gruyter. This marks the beginning of a new important season for Perspectives on Federalism and we are very proud of this. To celebrate this important event we have wrapped a very rich issue including legal, historical and philosophical contributions. In spite of the evident diversities of these articles, we can identify three main connecting themes: Latest Developments in EU law History of Thought and European Integration Constitutional Developments in national and supranational contexts. Concerning the first block of contributions, in her article Mari Minn dealt with the issue of supranational competence over patent law, looking at the TRIPS Agreement and at the decision of the CJEU in the Daiichi Sankyo case (CJEU case C-414/11 Daiichi Sankyo v DEMO Anonimos). Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E - III Márk Némedi instead explored the problematic case-law of the European Court of Justice on the ne bis in idem principle (also in light of the recent developments after the entry into force of the Lisbon Treaty) and its implications on mutual trust. In their essay Werner Vandenbruwaene, Patricia Popelier and Christine Janssens dealt with Art. 260 TFEU, especially looking at how to mitigate federal concerns in the context of infringement procedures and financial sanctions within the mechanism governed by this provision. Concerning the second block, in his article Tommaso Visone explored Albert Camus’ thought in his series of essays “Neither Victims Nor Executioners” (1946), where Camus stressed the importance of fighting for a new democratic world order against the condition of international dictatorship immanent in the XX century interdependent world. In his work, Paolo Caraffini instead looked at the European Movement International (EM) stance in defense of the Community institutions established under the Treaties of Paris and Rome during the so-called “empty chair crisis”, seen as a fundamental turning point in the history of European integration. Concerning the third block Jurgen Goossens and Pieter Cannoot offered an interesting account of the most important institutional evolutions of Belgian federalism between 2012 and 2014. The Authors argue that in spite of its importance the sixth state reform does not exclude the possibility of further evolutions, on the contrary further developments are to be expected. Edward Grodin wrote a comparative essay on the degree of convergence between the United States and the European Union regarding the structural role of administrative agencies and the so called “non- delegation doctrine”. As always, we would like to thank our readers for their support and recall that Perspectives on Federalism is open to other special issues. We also invite colleagues and scholars interested in that to submit new proposals. The Editors in Chief with the other members of the Scientific Board and Editorial Committee will evaluate the project as soon as possible. The peer review mechanism will be centralized in order to guarantee- as always- the quality of the articles. This is a tentative list of topics of interest to the Journal: Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E - IV Fundamental Rights Protection in the EU (especially after Opinion 2/13 of the Court of Justice of the EU and in light of the worrying situation in Hungary and elsewhere). National Borders and EU migration policies. Secession in Europe: What Role for the EU? The EU in a Comparative Perspective: Comparing the EU with other Supranational Organizations. This is not an exhaustive list, other topics can be proposed and we will be very happy to consider them for publication. Last but not least, we would like to announce that the next issue (3/2015) of our Journal will be devoted to Solidarity in Hard Times and will include some of the papers presented in an international conference held in Madrid on 11 - 12 - June – 2015. The Editors Giuseppe Martinico is Associate Professor of Comparative Public Law at Scuola Superiore Sant’Anna, Pisa and STALS Editor (www.stals.sssup.it). Roberto Castaldi is Associate Professor of Political Philosophy at eCampus University and Research Director of CesUE (www.cesue.eu). Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E - V ISSN: 2036-5438 Patenting in Europe: The Jurisdiction of the CJEU over European Patent Law by Mari Minn Perspectives on Federalism, Vol. 7, issue 2, 2015 Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E - 1 Abstract This paper will deal with EU competence over patent law, especially in the context of the TRIPS Agreement with reference to the ruling of CJEU in the Daiichi Sankyo case (CJEU case C-414/11 Daiichi Sankyo v DEMO Anonimos). The first part will explain the process of claiming patents at the national as well as the European level in order to understand the complexity of patent law, the second part will deal with the implications of jurisdiction and developments in EU patent regulations, the third part will deal with the effects of EU competence over the TRIPS patent provisions and the forth part will deal with the interpretation of substantive patent law in the light of the Daiichi Sankyo case. Key-words Substantive patent law, EU competence, TRIPS Agreement Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E - 2 1. Patenting inventions in the EU – national and European approaches The protection and enforcement of intellectual property rights are crucial for Europe´s ability to stimulate innovation and compete in the global economy; intellectual property rights are key means through which companies and inventors generate returns on their investment in knowledge, innovation and creativity. A recent study has estimated that IPR- intensive sectors account for around 39% of the EU´s GDP (EPO Industry Level Analysis Report: 2013) while 90% of the EU´s trade with the rest of the world is related to European intellectual property intensive industries. Knowledge-based industries play a core role in the 'Global Europe' (COM (2006) 567 final) and ‘Europe 2020’ (Horizon 2020) strategies. The European Charter of Fundamental Rights states that intellectual property shall be protected, meaning that the EU therefore recognizes its responsibility for protecting the IP rights of its citizens (Art. 17(2) Charter of Fundamental Rights). The protection of IP rights in the context of the establishment and functioning of the internal market is also envisioned in article 118 of the TFEU. Furthermore, article 207 (1) of the TFEU states that the common commercial policy of the EU is based on uniform principles including, among others, the commercial aspects of intellectual property rights.