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I agree that the best and legally soundest way forward is to proceed with a court common to some or all EU Member States, but not any non-EU States, which would also have jurisdiction over European patents as well as EU patents. I cannot see a legal or practical problem with simply reusing the draft text of the PC for that purpose, with a few necessary amendments.

However, in my view Article 3(2) TFEU does not create exclusive competence for the EU as regards such a court, because Article 3(2) only gives the EU exclusive competence as regards treaties with third States (based on the ERTA case, which Article 3(2) codifies), and of course it is not even possible for third States to be involved in such a treaty.

I think in theory a case can be made that Art. 114 or failing that, Art. 352 can be used to create a court, but I can imagine some legal and political opposition to such an idea in a number of Member States. The problem with using Art. 352 or requiring all MS to ratify a court treaty is that Spain and Italy might not be willing to vote in favour or ratify as long as they have objections to the EU patent as it is currently proposed.

Why not then provide for entry into force of a court treaty as long as a certain number of MS have ratified, without waiting for all of them (or even the 25 participants in the EU patent)? A part-ratification would not entirely solve the problems concerning patent litigation, but it would reduce them.

The conclusion that the participation by non-EU states is crucial in the Court's decision, seems correct. So, indeed, the solution will have to be some arrangement in which non-EU states do not participate.

Also, indeed, the reference to the Benelux court shows that it is still lawful to go for a common court system. The example of the Community Trademark litigation system should most definitely not be followed in view of the need for a system that provides uniformity, efficiency and a high quality.

However, I do not share the proposal to restrict the membership of the Agreement to the 25 EU Member States willing to participate in the Enhanced Cooperation on the Unitary Patent, for the following 3 reasons:

1. While indeed the new patent litigation system should cover at least all 25 states participating in enhanced cooperation, the new litigation system will not only handle unitary patents but also bundle patents as regards EU states, and why should Spain and Italy not be covered by the new patent litigation system as regards bundle patents?

2. Under Article 4(3) TEU, the EU states are obliged to excercise sincere Union loyalty. In particular, "The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union."
This implies that EU states may not conclude an agreement amongst themselves that affects common rules or alters their scope. The same reasoning explains the exclusive Union competence in Article 3(2) TFEU.
The common rules that would be affected / altered by a patent litigation agreement include Regulation 44/2001 and Directive 2004/48.
In my view, this renders it impossible to go for an agreement in which only EU states participate.

3. An agreement has the disadvantage that it can only enter into force after ratifications, and we need it to cover at least all 25 states participating in enhanced cooperation, all 25 of which should thus ratify.
This will take an awful lot of time, especially if one considers that Ireland needs a referendum while Denmark needs either a 5/6th majority in its parliament or a referendum. It may thus appear impossible to get the required at least 25 ratifications within a reasonable period in time.
One way out is to restrict participation in enhanced cooperation to those states that have ratified within e.g. 5 years, but this further restriction of the number of states covered by the unitary patent system would be a real pity.

These cumbersome ratifications are not necessary if one considers that using a treaty to create EU legislation is very old-fashioned. For example,
- the Brussels Convention on jurisdiction and enforcement has now been replaced by Regulation 44/2001; and
- the originally envisaged Community Trademark Agreement was never concluded because it was more efficient to adopt the Community Trademark Regulation.

In view thereof, I would suggest that now that only EU states can be covered, the draft EEUPC Agreement is replaced by a regulation. I suggest that Article 114 TFEU is a suitable basis for harmonizing national enforcements systems for EP patents to get an EU enforcement system for EP patents including unitary patents. If Article 114 TFEU appears to be legally impossible as legal basis for a patent litigation regulation, Article 352 TFEU can be used.

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