Articles
Abstract
This article discusses atypical acts of the European Union (EU) concerning intellectual property (IP) protection within the EU's internal legal order and its external relations. Internally, atypical acts are used in IP for flexible pre- and post-regulation purposes or for soft guidance and steering. Yet in IP and elsewhere, those flexibilities come at the cost of deficits in democratic legitimacy, legality, and legal certainty. Atypical acts are also common in the external trade relations of the EU. Like more formal conduct of trade relations by means of international agreements, they focus on the enforcement of IP rights. The less formal (and legal) character of these acts often allows them to be more policy-driven and so makes it easier to address key political concerns relevant for EU external trade relations in a more flexible and current manner. Some of these policies are subsequently turned into ‘hard’ law – for example in the course of the negotiations over the controversial Anti-Counterfeiting Trade Agreement (ACTA). Based on the comparative analysis of the role of atypical acts in the EU's internal legislation for IP <it>vis-à-vis</it> their role in external action, this article explores possibilities of limiting the drawbacks while preserving the benefits of a use of atypical acts in external policies.
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