Proportionality in IP enforcement: A tale of two frameworks

Eighteen years after the adoption of the Directive on the enforcement of intellectual property rights (IPRED), it is worth exploring why EU institutions have been ineffective harmonisers on the role of proportionality in enforcement cases, particularly in light of the instrument's overall relative success as an instrument of harmonisation. This paper aims to do so by critically assessing the assignment given to domestic courts on final injunctions, testing the hypothesis that the EU does not force nor empower them – unequivocally – to move away from Europe’s automated tendencies. To that end, it will shortly analyse the wording of Articles 3 and 11, first sentence, of IPRED, the provisions on proportionality and permanent injunctions, respectively, and reflect upon the limits and drawbacks of undefined concepts. This endeavour will also consider the messaging of the Commission and ECJ on the balancing act domestic courts need to perform based on Article 3 will be critically assessed. In the case law analysis, a distinction will be made between Article 3’s framework and that of fundamental rights, because the ECJ often resorts to fundamental rights as a potential mitigator in this context. This is expected to have repercussions for Article 3’s standing. Last, before revisiting the hypothesis, some exploratory thoughts will be dedicated to the possibility of strengthening the proportionality principle in IPR enforcement through legislative amendment based on some of the points of tension or ambiguity found in the foregoing analyses.