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The Scope of the Common Commercial Policy after Lisbon: The Daiichi Sankyo and Conditional Access Services Grand Chamber Judgments

This case note discusses two important recent judgments rendered by the ECJ on the scope of the Common Commercial Policy. In Daiichi Sankyo (Case C-414/11), the Court overturned its previous case law on TRIPs in light of the entry into force of the Lisbon Treaty. In Conditional Access Services (Case C-137/12, Commission v. Council) the Court annulled the decision to sign the European Convention on the legal protection of services based on, or consisting of, conditional access because of an incorrect legal basis. Both judgments reflect, once again, a broad interpretation on the scope of the Common Commercial Policy which has implications for the respective competences of the EU and the Member States. The Daiichi Sankyo v. DEMO judgment also has consequences for the effects of TRIPs within the legal orders of the EU and the Member States.