2011/03 > The plan to create a unified European patent litigation system: revision needed!

On 8 March 2011 the CJEU (Court of Justice of the European Union) issued its opinion  on the envisaged agreement to create a unified patent litigation system (currently called European and Community Patents Court), aimed at applying to European Patents, established by the European Patent Convention and granted by the E.P.O. (European Patent Office), as well as to future Community Patents.

The draft agreement proposed, in particular, the creation of a supranational jurisdiction which would have to decide, for those two types of patents, on infringement or non-infringement actions, cancellation actions, etc., thereby making it unnecessary to lodge actions before national jurisdictions in which those titles are protected. This new jurisdiction would not fall within the competence of the Community legal system due to the fact that it would also hear actions related to European Patents and thus would concern countries which are not Member States of the European Union, such as Turkey.

The CJEU decision, in substance, does not really diverge from the position adopted by Advocates General on 2 July 2010 and concludes that this draft agreement is not compatible with the provisions of the EU Treaty and the FEU Treaty (Treaty on the Functioning of the European Union).

Thus, the CJEU mainly holds that the jurisdiction given to this Court is in contradiction with the provisions of Article 267 of the TFEU. These provisions allow national Courts to apply for a preliminary ruling to the CJEU when the interpretation of Treaties or the validity of rights applicable in the European Union is at issue. The CJEU decision insists on this direct cooperation with the national Courts, which allows these Courts to participate narrowly in the good implementation and uniform interpretation of Community law as well as in the protection of the rights granted to individuals.

However, the draft agreement reserves to the proposed supranational jurisdiction the competence of referring a question to the CJEU for a preliminary ruling, thus depriving national Courts of this competence.

The ECJ considers that the draft agreement, by granting an exclusive competence to the proposed new Court – which is outside the institutional and jurisdictional framework of the European Union – to hear a significant number of cases lodged by individuals in relation to Community patents as well as in relation to the interpretation and the implementation of EU law, “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”.

The Court highlights as well that a decision issued by this patents court, in breach of European Union law, “could not be the subject of infringement proceedings nor could it give rise to any financial liability on the part of one or more Member States”.

On the other hand, it should be noted that the CJEU does not say a word about the linguistic regime proposed for the Patents Court, whereas the Advocates General found it unacceptable.

In the meantime, in order to allow the Community Patent to be set up, the principle of a reinforced cooperation, approved by the European Parliament on 15 February 2011, was authorised by the European Union Council on 10 March 2011 (PDF).

The recourse to such a reinforced cooperation is authorised by the Lisbon Treaty, modifying the Treaty on the European Union, to allow the adoption of European legislative acts by a limited number of Member States, as far as the searched aims cannot be reached within a reasonable time period and that nine Member States at least take part. As Spain and Italy refuse to agree on the plan for the Community Patent, the recourse to a reinforced cooperation will at least allow the project to progress.

The Commission of the European Union must now present two legislative bills (i) on the creation of the single Community patent and (ii) on the linguistic regime applicable to that patent.