Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 12: Intellectual property in decisions of national Constitutional Courts in Europe
The topic ‘Intellectual property in decisions of national Constitutional Courts in Europe’ is, on the one hand, rather broad, since it covers all ‘intellectual property rights’ without distinction. Yet, it may well be that from a constitutional law point of view, different intellectual property (IP) rights are to be treated differently. Moreover, the reference in the title to decisions of ‘national constitutional courts in Europe’ refers to the multitude of constitutional courts in the currently 28 Member States of the EU. On the other hand, this chapter is also somewhat narrow, since it is not about the intersection of IP laws and constitutional law in general, but only addresses constitutional law issues that have been raised in front of, and decided by national constitutional courts. In this respect, a further limitation lies in the fact that the decisions to be discussed here are only those of national ‘constitutional’ courts, even if national general courts may likewise be in a position to address constitutional issues regarding IP law. Finally, another limitation of the subject at issue resides in the fact that only ‘European’ constitutional courts shall be looked at, rather than all constitutional courts worldwide. One of the reasons to look at how IP has been discussed in decisions by European constitutional courts is, of course, that in general a marked difference can be found between continental European constitutional law theory and practice on the one hand, and constitutional law theory and practice in States of the common law tradition.
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