EU exhaustion of IP rights through the fundamental rights lens
- Author
- Simon Geiregat (UGent)
- Organization
- Abstract
- The principle of exhaustion in the EU has rarely been analysed through the lens of fundamental rights and principles. This chapter offers a panoramic overview, assessing several aspects of the exhaustion doctrine from a human-rights and fundamental-principles angle and adding critical remarks to case law by the Court of Justice of the EU (CJEU). The analysis led to the following findings: First, exhaustion is justified by three complimentary theories. These rationales are closely related to the fundamental right to protection of one’s property or ‘possessions.’ Second, the policy in favour of EEA-only exhaustion and against international exhaustion might amount to an interference with different fundamental rights, but these interferences are probably justified within the broad margin of discretion of the legislature. Third, the CJEU has referred to fundamental rights in the framework of the burden of proof of exhaustion and in relation to the exhaustion defence for legitimate reasons. These references have been piecemeal and there is room to pay more substantial attention to fundamental interests. Fourth, exhaustion presents particular challenges in the realm of digital content and digital goods. The CJEU has considered equal-treatment arguments in this regard, but its reasonings are not particularly convincing. In an era where ‘access’ and services are increasingly preferred over ownership, it is time to rethink how we can assure that the rationales behind exhaustion are effectively warranted in the digital context. Overall, fundamental-rights arguments have some untapped potential for the exhaustion debate.
- Keywords
- exhaustion, ECHR, Charter, intellectual property, equal treatment, freedom of expression, right to property, freedom to conduct a business
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Citation
Please use this url to cite or link to this publication: http://hdl.handle.net/1854/LU-01KT0YXBME1402BH51BGMDEFGF
- MLA
- Geiregat, Simon. “EU Exhaustion of IP Rights through the Fundamental Rights Lens.” Intellectual Property Law and Human Rights, edited by Paul Torremans, 5th ed., vol. 34, Wolters Kluwer, 2026, pp. 1055–106.
- APA
- Geiregat, S. (2026). EU exhaustion of IP rights through the fundamental rights lens. In P. Torremans (Ed.), Intellectual Property Law and Human Rights (5th ed., Vol. 34, pp. 1055–1106). Alphen aan den Rijn: Wolters Kluwer.
- Chicago author-date
- Geiregat, Simon. 2026. “EU Exhaustion of IP Rights through the Fundamental Rights Lens.” In Intellectual Property Law and Human Rights, edited by Paul Torremans, 5th ed., 34:1055–1106. Alphen aan den Rijn: Wolters Kluwer.
- Chicago author-date (all authors)
- Geiregat, Simon. 2026. “EU Exhaustion of IP Rights through the Fundamental Rights Lens.” In Intellectual Property Law and Human Rights, ed by. Paul Torremans, 34:1055–1106. 5th ed. Alphen aan den Rijn: Wolters Kluwer.
- Vancouver
- 1.Geiregat S. EU exhaustion of IP rights through the fundamental rights lens. In: Torremans P, editor. Intellectual Property Law and Human Rights. 5th ed. Alphen aan den Rijn: Wolters Kluwer; 2026. p. 1055–106.
- IEEE
- [1]S. Geiregat, “EU exhaustion of IP rights through the fundamental rights lens,” in Intellectual Property Law and Human Rights, 5th ed., vol. 34, P. Torremans, Ed. Alphen aan den Rijn: Wolters Kluwer, 2026, pp. 1055–1106.
@incollection{01KT0YXBME1402BH51BGMDEFGF,
abstract = {{The principle of exhaustion in the EU has rarely been analysed through the lens of fundamental rights and principles. This chapter offers a panoramic overview, assessing several aspects of the exhaustion doctrine from a human-rights and fundamental-principles angle and adding critical remarks to case law by the Court of Justice of the EU (CJEU).
The analysis led to the following findings: First, exhaustion is justified by three complimentary theories. These rationales are closely related to the fundamental right to protection of one’s property or ‘possessions.’ Second, the policy in favour of EEA-only exhaustion and against international exhaustion might amount to an interference with different fundamental rights, but these interferences are probably justified within the broad margin of discretion of the legislature. Third, the CJEU has referred to fundamental rights in the framework of the burden of proof of exhaustion and in relation to the exhaustion defence for legitimate reasons. These references have been piecemeal and there is room to pay more substantial attention to fundamental interests. Fourth, exhaustion presents particular challenges in the realm of digital content and digital goods. The CJEU has considered equal-treatment arguments in this regard, but its reasonings are not particularly convincing. In an era where ‘access’ and services are increasingly preferred over ownership, it is time to rethink how we can assure that the rationales behind exhaustion are effectively warranted in the digital context. Overall, fundamental-rights arguments have some untapped potential for the exhaustion debate.}},
author = {{Geiregat, Simon}},
booktitle = {{Intellectual Property Law and Human Rights}},
editor = {{Torremans, Paul}},
isbn = {{9789403515694}},
keywords = {{exhaustion,ECHR,Charter,intellectual property,equal treatment,freedom of expression,right to property,freedom to conduct a business}},
language = {{eng}},
pages = {{1055--1106}},
publisher = {{Wolters Kluwer}},
series = {{Information Law Series}},
title = {{EU exhaustion of IP rights through the fundamental rights lens}},
url = {{https://law-store.wolterskluwer.com/s/product/intellectual-property-law-and-human-rights/01tPg00000Jb1VJIAZ}},
volume = {{34}},
year = {{2026}},
}