In its judgment of 18 July 2013, the Court of Justice of the European Union
(‘‘CJEU’’) came to the conclusion that after the entry into force of the Lisbon Treaty on
1 December 2009, all the provisions of the TRIPS Agreement fall within the field of the
common commercial policy and that, therefore, national courts of Member States are no
longer competent to apply and/or interpret them on their own. This was a radical change
from the doctrine laid down in its judgments of 14 December 2000 and 11 September
2007, where the CJEU had concluded that in the fields (such as patents) where the EU has
not yet legislated, the Member States remained principally competent. This article, by
analyzing the practical consequences that such judgment has had on the case law of
national courts during the past three years, demonstrates that this bold change of doctrine
in fields such as patent law has placed the EU and its Member States in an impossible
situation: the institution (EU) that, according to the CJEU, would now be competent is
incapable of complying with the obligations of protection introduced by the TRIPS
Agreement. This is because the EU does not have a patent office and it has recently
decided that it does not want to have one. Furthermore, the institutions (administrative
and judicial authorities of Member States) that would be capable of complying with such
patent protection obligations would no longer be competent. As a result, this change of
doctrine has paradoxically left the EU and its Member States exposed to the risk of being
called before the WTO Dispute Settlement Body for failing to comply with such protection
obligations (in particular, Art. 70.7 of the TRIPS Agreement).

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• The Practical Consequences of the CJEU Judgment of 18 July 2013 Changing Its Doctrine on the Respective Competences of the EU and its Member States to Apply the TRIPS Agreement: Have We Seen the Tip of the Daiichi Iceberg Yet?