EU / EPO - Action brought by Spain against the Regulation on the unitary patent calls the judiciary character of the Boards of Appeal of the EPO into question.
Case Numbers C-146/13 - Spain v Parliament and Council
In its action seeking
the declaration of legally non-existence of Regulation 1527/2012 (see post
dated June 5, 2013), Spain has brought forward a first main argument which is
not only directed against the Regulation under attack but might have
far-reaching consequences for the European Patent Organisation. According to
the summary of the main arguments available on the website of the CJEU, Spain
relies on the breach of the values of the rule of law in so far as a regulation
has been established on the basis of a right granted by the European Patent
Office, whose acts are not subject to judicial review.
Spain submits that the applicant whose application is rejected and the patentee whose patent is revoked don’t have access to an independent court for a review of the decision of the EPO. Spain points to the fact that the Boards of Appeal and the Enlarged Board of Appeal are organised within the European Patent Office and thus are not independent from the EPO.
In this respect, Spain refers to the initiative to make the independence of the Boards of Appeal more visible and to revise the EPC accordingly which has already in 1997 resulted in proposals for strengthening the independence of the Boards of Appeal and in 2004 in a complete draft for revision of the Convention, with the goal of organisationally separating the Boards of Appeal from the European Patent Office. However, neither the management of the EPO nor any of the delegations in the Administrative Council have considered it necessary to take the initiative to convene a Diplomatic Conference for revising the Convention. This might turn out to have been a serious omission.Whereas a number of national courts held that decisions of the Boards of Appeal are not subject to national review and LJ Robin Jacob said in Lenzing v Comptroller General that the members of the Boards of Appeal are judges in all but name, this did not stop parties to the proceedings to challenge their legal status (see for example the file of the pending review case R 8/13). It remains to be seen whether case C-146/13 results in a review of this status by the CJEU on the basis of the standards applicable under Article 47 of the Charter of Fundamental Rights of the EU.
Read the pleas in law and main arguments in C-146/13 here.