RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/191
22 June 2000
(00-2486)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
NON-VIOLATION COMPLAINTS UNDER THE TRIPS AGREEMENT – SUGGESTED
ISSUES FOR EXAMINATION OF SCOPE AND MODALITIES UNDER
ARTICLE 64.3 OF THE TRIPS AGREEMENT
Communication from Canada, the Czech Republic, the European Communities
and their member States, Hungary and Turkey1
The Secretariat has received the present communication, dated 21 June 2000, from the
Permanent Delegation of the European Commission, submitted on behalf of Canada, the CzechRepublic, the European Communities and their member States, Hungary and Turkey.
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1. Introduction
1. The specific nature of the TRIPS Agreement calls for careful consideration of the extent and
means for non-violation complaints.  The issue of scope and modalities for such complaints under the
TRIPS Agreement has, however, not been adequately addressed so far.  Insufficient headway has been
made to allow for final conclusions to be drawn from the inputs of Members and discussions in the
TRIPS Council.
2. In a general way, views of Members have diverged.  However, few details have been given so
far to illustrate positions, which can be summarized along the following lines:  one Member hasstressed the similar characteristics of the WTO's three pillar agreements, and as a result has stated its
abiding interest in ensuring that complaints can be brought against measures which, although they do
not violate the TRIPS Agreement, may nonetheless nullify or impair benefits that can be expected to
be derived from it.  The potentially wide application of non-violation complaints has led other
Members to stress the importance of pursuing the debate.  The point was made that an overarchingcoherence between the WTO's main agreements had to be maintained, and their potentially
contradictory application to be avoided.  The attent ion was also drawn to the need to remain free to
pursue legitimate public policy objectives.
3. Taking into account the strong support for the continuation of a thorough examination, which
emerged from discussions at the last meeting of the TRIPS Council, on 21 March 2000, thiscommunication intends to provide a contribution to the future substantial debate on scope and
modalities for non-violation complaints in the TRIPS Council.  It is clearly not exhaustive on all
possible issues which delegations might wish to raise in this context and is open for completion by
further written submissions.
                                                     
1 The Members on behalf of whom this communication was submitted have indicated that it is without
prejudice to their rights and obligations under Article 64 of the TRIPS Agreement.IP/C/W/191
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2. Considerations
4. There are a number of elements which need to be weighed carefully when the scope and
modalities for non-violation complaints under the TRIPS Agreement are being examined.
(a) The TRIPS Agreement is not a market access agreement as such
5. While it is true that the TRIPS Agreement facilitates market access of goods and services with
intellectual property rights, it is not a market access agreement as such.  Market access commitments
are encapsulated in the respective GATT and GATS schedules of WTO Members, and have been
negotiated in subsequent GATT/WTO Rounds.
6. The TRIPS Agreement is, at heart, a sui generis agreement.  It provides minimum standards
with regard to the acquisition or exploitation of intellectual property rights and on their scope, as well
as procedures and measures to enforce these rights, notably by enabling effective action against
unauthorized use of those rights by third parties.  Complaints could thus be considered as fallingwithin a possible ambit of a non-violation case under the TRIPS Agreement when they are primarily
linked to benefits that can reasonably be expected to result from the conferral of intellectual property
rights and their exclusivity, i.e. those that are specific  to the TRIPS Agreement,  rather than to any
resulting economic returns which are covered by market access concessions under the GATT or the
GATS.
7. Cases where limitations on the availability, maintenance or enforcement of an intellectual
property right are the specific object  of a complaint, might fall within this category.  When (a
restriction on) market access is the principal object of a complaint, by contrast, this should be filed
exclusively under the relevant procedures provided in the GATT and GATS.
(b) Coherence between the different WTO agreements8. Intellectual property rights are invariably linked to goods or services, for which market access
rights have been negotiated in the context of the GATT or the GATS.  It is important, and in the
interest of all WTO Members, to ensure that a complaint which is lodged under different WTO
agreements should not lead to a dispute settlement result that could have the effect of undermining the
coherence between those agreements.
9. This is especially pertinent in the field of non-violation complaints, to the extent that these
relate not to a breach of an international obligation accepted by a WTO Member, but to the
nullification or impairment of a benefit without any provision having been specifically violated.
10. The need to maintain coherence between the different WTO agreements can be illustrated by
a few examples.  A country may decide, for exampl e, to ban the manufacture, processing, importation
and distribution of materials or products that contain a prohibited substance.  This could affect foreign
intellectual property right holders who may be the main providers of such products to that market.Similarly, a country may decide to impose advertizing restrictions on the marketing of certain goods
or services.  This could impose significant limitations on the promotion of brands, trademarks or other
denominations.  Equally, a country may decide to apply a heavy taxation on certain goods with
intellectual property rights whose use is deleterious to the environment.
11. In all these cases, it is highly questionable whether WTO Members would be in favour of
leaving the option open for countries to file a non-violation complaint under the TRIPS Agreement, if
the measure is found to be in full compliance with multilateral provisions under the GATT and its
annexed agreements or the GATS.  At a minimum, in order to maintain consistency between the
WTO agreements, measures that fall within the general exceptions found within the GATT or theIP/C/W/191
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GATS should not be subject to dispute settlement under the TRIPS Agreement.  Agreements listed in
the Secretariat's note2 which contain provisions on non-violation complaints suggest that the potential
for such conflicts can be reduced.  There are also additional approaches, aside from exceptions, that
are worth considering in further discussions.
3. Suggested Follow-up
12. Given the number of outstanding issues which need further clarification and examination, it is
suggested to continue the debate on scope and modalities in the TRIPS Council.  Complementary
contributions may shed some light on other difficult questions, such as the distinction between
violation and non-violation complaints in the sole context of the TRIPS Agreement or the relationship
between non-violation complaints and the general principles contained in the Agreement.
13. Also, at present, there is no clear understanding on the meaning, as it applies to the TRIPS
Agreement, of benefit among WTO Members.  Moreover, given the distinction noted between theTRIPS Agreement and other WTO agreements, it is necessary to clarify the application of
non-violation complaints in the context of intellectual property within the existing WTO body of law.
The uncertainty regarding the application of such non-violation complaints needs to be resolved so as
to minimize the possibility of unintended interpretation.
14. Finally, we would again draw the attention of WTO Members to the aforementioned
Secretariat's note that contains valuable information worth exploring in future discussions.
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2 IP/C/W/124, dated 28 January 1999.