Intellectual property law is in a perpetual state of stress, contending with new technologies and new forms of unfair competition; and is apparently in conflict with competition law. This book is a meticulously careful analysis of one scene of battle—that of the tension between intellectual property rights and the European Community’s principles of the free movement of goods and services, and of competition. Intellectual property rights are in essence exclusive and territorial; therein lies the conflict with a common market. Although the seeds of reconciliation lie within the Treaty of Rome itself, in its provision for harmonization of Member States’ laws, to date the steps towards ending the war have been only partially successful. This is due largely to the reluctance of Member States to harmonize, and the grudging nature of the harmonization that has taken place. Thus it has fallen to the European Court of Justice [ECJ] to adopt the role of peacemaker. However, the ECJ’s efforts to resolve the skirmishes brought to its attention cannot be accused of consistency. And decisions so far have the effect that intellectual property owners may be held to have abused their intellectual property rights, and infringed Treaty rules, merely because they have enforced their exclusive rights.

Dr Govaere isolates the three possible approaches that could be taken towards resolving a conflict that is, in fact, more apparent than real. This is because the exclusive intellectual property rights exist, with the short-term effect of restricting competition and freedom of movement, only to serve the long-term aim of stimulating development and production, and thereby increasing competition. This is a principle now accepted by the ECJ, and the question has become one of distinguishing between legitimate and illegitimate uses of the rights. If the function of the intellectual property right concerned under national law were to be considered by the ECJ, the author suggests, consistent and predictable principles could be laid down by the ECJ for making this distinction. This would replace the wayward case-by-case decisions so far reached. Such a functional approach would have the advantage of taking into consideration, not only the economic substance of the right, (at present in emphasis on exhaustion of the right after the right owner’s consent to first marketing), but also the reasons why, and the conditions under which, the national right was granted, as well as the public interest. Then only uses which are justified and proportional would escape the rules on free movement of goods. But it would have to be a Community-wide definition of function to ensure consistency.

Part III aims to put the issues raised into practical clothing in the form of a case study of the debate surrounding design rights for spare parts. This is because “[t]he spare parts cases have the doubtful merit of emphasising the inability of Community law in its present state to come to terms with the essence of intellectual property rights”. Although a functional approach was at least implicitly taken by the ECJ in the Magill case, in the Maxicar case, where the free movement of goods was at issue, rather than Art. 86, the ECJ expressly reserved to national legislators the right to determine the conditions and procedures for granting the national rights. Dr Govaere’s suggestion would enable the ECJ to declare that a domestic right had been improperly granted, and that its exercise was therefore unjustified, contravening the relevant Treaty policy.