ECJ Rejects Single European Patents Court
The European Court of Justice (ECJ) has given its final opinion (Opinion 1/09 dated 8 March 2011) on the compatibility of the draft agreement on the proposed European and Community Patents Court with the Treaties that underpin the European Union.
The conclusion is very clear:
“The envisaged agreement creating a unified patent litigation system (currently called ‘European and Community Patents Court’) is not compatible with the provisions of the EU Treaty and the FEU Treaty.”
This is a further setback for the proposed Community Patent (also known as the EU Patent), which aims to provide a unitary patent throughout the entire European Union, as an alternative to the current European patent system that provides a bundle of national rights. Although implementation of the Unified Patent Litigation System (UPLS) is not a prerequisite for the implementation of the Community Patent, it is generally accepted that the benefits of the Community Patent will not be fully realised unless the patent can be enforced through a central court, rather than being the subject of proceedings in individual member states. The draft agreement on the UPLS aimed to set up a court which was not part of the ECJ, but which would have jurisdiction to hear actions related to European and Community patents.
The decision was not unexpected, because the Advocates General had previously given a negative opinion on 2 July 2010. The full court is not obliged to follow the opinion of the Advocates General, but often does so.
However, it is striking that the opinion of the full court goes much further than the opinion of the Advocates General, who appeared to suggest that amendment of the UPLS agreement to achieve compliance might be possible. In contrast, the full court deals a much more serious blow to the principle that the European and Community Patents Court should be allowed to exist at all. The basis of this decision is clearly and forcefully explained in paragraph 89 of the opinion, which is set out in full below:
“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.”
It is difficult to see where the UPLS can go from here. The impact of this decision on the current moves to progress the Community patent, without the unanimous support of all EU members, will also be worth watching.
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