Apr 2009 15

The Legal Fig Leaf0

The Council of Ministers has passed a regulation codifying all the existing rules about the “Community Trade Mark” (EC 207/2009). At first sight, it’s not particularly eye-catching. There’s been an EC trade mark for fifteen years now. This legislation on one level simplifies what to some extent has become a hotch potch of national measures for this common scheme.

There are, however, some questions as to whether it enhances the role of the Office for Harmonisation in the Internal Market (OHIM), the little-known EU quango of trade marks and designs. That body already employs 660 people, with revenue (presumably from business fees) of €200 million a year.

There’s one other key problem. The whole thing is intrinsically illegal. The regulation itself admits that “Since the Treaty has not provided the specific powers to establish such a legal instrument, Article 308 of the Treaty should be applied.”

308, like articles 94 and 95, makes up one of the so-called ‘rubber articles’ of the EC treaties. This allows the EU to pass laws in areas which are not actually named in the treaties. The practice is sufficiently perfidious and frequent that one of the working groups set up during the Convention on the Future of Europe (that drafted the EU Constitution) specifically looked into it. The chairman – a former European Commissioner – himself recommended the principle be dropped from the new treaty.

It wasn’t. That, of course, would be too inconvenient for those bartering away powers.

But as this case once again shows, if you have a treaty system that allows ministers to make up as they go along which things they want to hand over to Brussels, without so much as a nod from their parliament, your treaty system is bust. It’s one more reason why the Irish, Dutch and French were right to vote No to Lisbon.

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