Then I shall deliver my Opinion in C-132/07 Beecham v Andacon (pending)
The European Court of Justice’s in-house storyteller and neon-lit ‘intellectual’ has been parading his prose and erudition again.
Advocate General Damaso Ruiz-Jarabo Colomer is known for his extravagant flights of fancy in his legal recommendations to the court, spiraling off without due care and attention on bizarre cultural tangents.
Some years ago he was distracted in his legal analysis of whether DaimlerChrysler should be allowed to market a car called ‘Picaro’ given a similarity with Citroen’s Xara ‘Picasso’.
Straying wildly from the trademark law at hand, he fulminated at length on the debasement of the great artist’s name, saying it was “sad to note that the most remarkable legend of the 20th century, a patron of humanity, has been reduced to a commercial object, a commodity.”
And this week Colomer has surpassed even his own standards of non-sequitur pontification and superfluous intellectualism.
In a recommendation to the ECJ on a dispute involving counterfeit drug investigations and efforts by Glaxo to keep out cheap African imports, the legal adviser spends the first three pages of his opinion waxing lyrical about ‘pirates.’
Below is Colomer’s introduction, complete with footnotes. The translation is ‘Monster’s own from the French. The hifalutin flourishes are, we stress, not an embellishment, and are every bit as florid and pretentious in the original:
The number of meanings of the word ‘pirate’ [from the Greek ‘peirates’: bandit, plunderer] cannot fail to surprise. As a noun, any child would be able to describe this archetype, by simple enumeration of his most characteristic traits: the wooden leg, the hooked hand, the fullsome beard and eyepatch, tribute to his choice of hazardous lifestyle, full of adventures and dangers.
This representation has been prevalent at least since the romanticism of the 19th century*; even an author such as Balzac, sheltered from any suspicion of following the precepts of this literary style so anchored in the first half of the 19th century, wove a yarn of piracy into one of his novels, no doubt as a device to amplify the drama of the travails Madame D’Aiglemont suffers her whole existence.**
By extension, the noun is used as an adjective, notably when added to a product, in that instance alluding to its lack of authenticity or to its introduction on the market by less than orthodox means. But this meaning contrasts with the true spoils of these characters, as it was not the stolen treasures that were considered illegal, but their appropriation by violence from their legitimate owners. One poet contemporary to the age of piracy, in an ode to rebellion, described the boat itself as the pirate’s most precious belonging, superior to the fabulous plundered treasures.***
In the juridical debate the present conclusions must confront, one could compare, with a bit of imagination, the companies dedicated to parallel trade to the pirates and those defending their intellectual property rights to the corsairs, those with a licence from their government to hunt down the vessels of powerful enemies. However, in European law the terms are turned around, because, while the previous comparison applies to exchanges with third countries, in intra-community trade the parallel importer is acting within the law, enjoying corsair rights to pursue the companies trying to harm this freedom of movement. It all depends on the point of view, because, for these big companies, the ‘free riders’ or commercial traders constitute real-life ‘filibusters’.****”
*Hollywood transformed the depiction of these lovable renegades, in filming the adventures of Captain Jack Sparrow and his acolytes in the films entitled ‘Pirates of the Caribbean’, in which any resemblance with reality is purely fortuitous.
**Balzac, H. de, La femme de trente ans, editions Flamarion, Paris, 1996, particularly p.217, describes how Helene, daughter of Madame D’Aiglemont and her husband, unites with a corsair to start a family on board his boat The Othello; following various tribulations and a skirmish with the Saint-Ferdinand, commanded by the General, Helene’s father, she is washed up on the coast of Cantabria and only manages to save one of her children.
***Espronceda, J. de. (1808-1842), author of ‘La cancion del pirata (the song of the pirate), reproduced in Las mil mejores poesias de la lengua castellana (The Top 1000 poems in Catalan), edition Ibericas, 31st edition, Madrid, 1995, p.302-303, composed the following lines: “Que es mi barco mi tesoro, / que es mi Dios la libertad, / mi ley la fuerza y el viento, / mi única patria la mar” (for my boat is my treasure,/ my God, is freedom,/ my law, the strength of the wind,/ my only fatherland, the sea).
****This denomination applies to a type of pirate operating essentially in the Caribbean, with carte blanche to plunder at will. In his Histoire des Aventuriers qui se sont signales dans les Indes, Olivier de Oexmelin gives the curious details of the lives of these buccaneers, for example the sum they received in compensation for a mutilation suffered in combat: one hundred piastres for an eye and six hundred for the right arm. Melegar, V., Pirates, Corsaires and Filibusters, translation in Spanish by Fermin Munoz, edition Bruguera, Barcelona, 1998, p.82
Then, and only then, does Colomer feel cerebrally braced to tackle the legal niceties of illegal pharmaceutical trade in the 21st century…