Reto M. Hilty
Optionales europäisches Vertragsrecht (»28. Modell«): »Geistiges Eigentum«
Volume 76 (2012) / Issue 2, pp. 339-373 (35)
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An Optional European Contract Law Instrument (»28th Model«): »Intellectual Property« In the search for the »28th model«, a glance at the European acquis communautaire could lead us to assume that intellectual property is in the vanguard and that the establishment of an optional instrument has proven to be a model of success. All that was actually created, however, were two supranational legal systems, namely in trade mark law and in design law. The terrain for these two regulations, from 1993 and 2002, respectively, was certainly well-cleared, for the corresponding national regimes had for the most part already been harmonised via directives in 1988 and 1998. These two EU regulations thus did not compete with the national legal systems so much in terms of content as with respect to their geographic scope. A registrant primarily chooses EU legal title when he or she intends to do business in the EU and not strictly within national boundaries. The European Patent Convention (1973), on the contrary, is not only not a legal entity of the EU, but it also is based on an independent supranational construct, the European Patent Organisation. Furthermore, the Convention's intended purpose is limited to centralising the procedures leading up to the grant of patents for the participating, currently 38, member states. Once granted, however, the so-called bundle patents are for the most part on a par with the nationally granted patents. A true supranational patent-law title has not been achieved yet, despite decades-long efforts. The »enhanced cooperation« between 25 member states (Spain and Italy not included) that is currently being discussed will likewise not be able to stand in for an EU patent – not to mention the open question of whether business and industry would even accept such a construct. In the area of copyright, again, certain vague ideas have recently been brought into play that point towards an EU right, though without any concrete details, and such a thing as an EU copyright – assuming discussion on this topic does not soon fade away on its own – certainly lies far in the future. It is especially striking that agreements on intellectual property rights – which practically speaking are incredibly important – have never played a part in the previous initiatives for a unifi ed European contract law. It is in relation to just these types of contracts that an optional »28 th model« seems the most obvious choice for markedly increasing legal certainty in the outcome of court disputes. Indeed, more innovation and competitiveness cannot be gained through the abstract reinforcement of legal protection alone; what is further necessary is a knowledge transfer as comprehensive as possible. First and foremost, this requires an appropriate contract law that is capable of providing for the particularities of each contractual subject.