Brussels, 08/03/2011 (Agence Europe) - The Court of Justice, meeting in plenary session on 8 March, has concluded that the draft agreement on the creation of a European and Community Patent Court (PC) as part of the Unified Patent Litigation System (UPLS, see EUROPE 10330) is not compatible with the EU Treaty or the Treaty on the Functioning of the EU.
It takes the view that, by conferring on such an international court (it is outside the institutional and judicial framework of the EU) exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of patents, and to interpret and apply European Union law, the agreement will deprive member states' courts of their powers with regard to the interpretation and application of EU law. The agreement would also affect the powers of the Court to reply, by preliminary ruling, to questions referred by those national courts. Accordingly, the agreement would alter the essential character of the powers conferred on the institutions of the European Union and on the member states which are indispensable to the preservation of the very nature of EU law.
In its considerations, the Court says that: - unlike other judicial systems put in place by international agreements, which limit themselves to interpreting the provisions of such agreements and, incidentally, some provisions of EU law that relate to these agreements, the PC has the duty to interpret and apply not only the envisaged international agreement, but also provisions of European Union law, thereby adversely affecting the autonomy of the European Union legal order; - the PC would become, in its area of exclusive competence, the Court's sole judicial interlocutor, depriving national courts of the power to refer questions to the Court for a preliminary ruling, when the current system establishes close cooperation between national courts and the Court; - if a PC ruling were to be in breach of European Union law, it 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, unlike what happens when a national court breaches European law.
The European Commission reacted to the Court's opinion by saying that it was unlikely to have any impact on the decisions taken by the Competitiveness Council of 10 March on enhanced cooperation on the European and Community patent, and that it was essential to press on in this area. It highlighted the distinction between putting in place the protection of the unitary patent and the creation of the European and Community patent court, and stated that it would carefully study the Court's objections to find appropriate solutions. Italy and Spain, whose reservations over the language regime of the unitary patent are well known, also reacted to the opinion. The Spanish government said that the Court opinion made the proposed unitary patent “unviable” as “without the legal part, which has been invalidated by the Court …, nothing can be done” since the package forms “a single whole”. The Commission's desire to make a distinction between the two aspects would be “futile” and agreement on the package should be made “all together” by all 27 countries. Italy was more cautious: it was “with satisfaction” that it noted the Court's opinion that “supports the Italian position, which wants to await the opinion of the judges in Luxembourg before going on to examine the other aspects of the protection of the European patent”. While acknowledging that “the possibility of having a unified jurisdiction is a real advantage for companies and member states compared with the current situation”, Italy nevertheless retains the option of going to the Court of Justice to prevent the proposed enhanced cooperation on the patent and “will repeat forcefully its opposition at the Competitiveness Council of 10 March”. (F.G./transl.rt)