The inexhaustible question - Free movement of goods and intellectual property in the European court of justice's case law, 2002-2006

From its very beginnings, the jurisprudence of the European Court of Justice (ECJ) on the free movement of goods had to integrate intellectual property rights.1 By and large, it can be said that the Court has been very successful in eliminating unwarranted restrictions to the free movement of goods on grounds of such rights. In several recent judgments, the Court refined its jurisprudence concerning the doctrine of exhaustion. This doctrine is the Court's formula for balancing two competing concerns: 2 on the one hand, the fundamental principle of free movement of goods, guaranteed by Art. 28 EC. This is relevant, in the present context, for parallel traders, who "play an important role in preventing the compartmentalisation of national markets".3 On the other hand, there are the legitimate interests of the holders of intellectual property rights (recognised by Arts. 295 and 30 EC). The analysis of the case law can, thus, be subdivided into three aspects: the rights conferred on owners of intellectual property, the conditions for exhaustion of intellectual property rights to occur, and the consequences of exhaustion