UPDATE - Today, the CJEU rendered the opinion on the EU Patents Court.
The Court states that the agreement is not compatible with EU law.
Read the opinion in English here.
Read the opinion in French here.
Read the press release in Dutch here.
Read the press release in English here.
Read the Commission press release (in English) here.
More information can also be found on the EPLAW website.
In sum, I would believe that notwithstanding the Court's negative conclusion, there is sufficient room left to move on.
The CJ’s opinion does not at all follow the leaked opinion of the Advocates-General.
The CJ appears opposed to the very idea of allowing an international court to rule on matters of EU law, see the concluding paragraph:
89. Consequently, the envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law.
Importantly, it appears that a court common to EU states only (so excluding the 11 EPC states that are not EU states) is possible, see:
82. It must be emphasised that the situation of the PC (= patents court) envisaged by the draft agreement would differ from that of the Benelux Court of Justice which was the subject of Case C 337/95 Parfums Christian Dior [1997] ECR I 6013, paragraphs 21 to 23. Since the Benelux Court is a court common to a number of Member States, situated, consequently, within the judicial system of the European Union, its decisions are subject to mechanisms capable of ensuring the full effectiveness of the rules of the European Union.
In view of the above, it seems possible to move on, although the details are not yet clear.
For example, if we are talking about an “agreement”, who should be the Union’s counterparty now that the agreement belongs to the exclusive Union competence in view of Article 3(2) TFEU and the overlap of the agreement with existing EU legislation?
Would it be possible to establish the EU patent litigation system by means of a regulation, e.g. a regulation adopted under Article 114 TFEU by means of which the national systems of EP patent enforcement are harmonized into an EU system of EP patent enforcement?
The Court’s opinion has the consequence that the EU Patent Regulation cannot be extended to the other EEA states (deviating from what was agreed in the EEA Agreement as to the Community Patent Convention, in line with which on the previous regulation drafts the indication “text with EEA relevance” was placed), as it will not be possible to have a patent court for all EEA states.
Posted by: Leo Steenbeek | 08/03/2011 at 12:31