Brussels, 02/03/2007 (Agence Europe) - In early February, the European Parliament legal department sent the EP's legal affairs committee a confidential interim opinion on the implications for the EU of its member states potentially joining the European Patent Litigation Agreement (EPLA). Requested by the European Parliament in its October 2006 recommendation on the EU's future patent policy (see EUROPE 9286), the legal department's report is categorical: 'the Community's competence is exclusive of the matters governed by EPLA and member states therefore are not entitled on their own to conclude that Agreement.'
Under the European Patent Litigation Agreement, any disputes between the contracting parties over the interpretation and application of the agreement, not settled by negotiation, shall be submitted to the EPLA's Administrative Committee. 'Compliance with Article 98 of EPLA would prima facie constitute a breach of Article 292 of the EC Treaty,' argues the European Parliament's legal department. Article 292 stipulates that member states pledge not to submit disputes on the interpretation or application of the EC Treaty to any form of settlement other than those set out in the Treaty in question, in other words the European Court of Justice.
The EP's legal department also believes that EU member states 'no longer have the right, acting individually or even collectively, to undertake obligations with non-member countries which affect' common rules already adopted. By subscribing to the EPLA, member states would be signing an intergovernmental agreement with Iceland, Liechtenstein, Monaco, Switzerland and Turkey. The EPLA governs matters dealt with by EU Directive 2004/48/EC regarding the enforcement of intellectual property rights, and the EPLA contradicts Directive 2004/48/EC on a number of matters. Likewise, 'conclusion of EPLA would affect the uniform and consistent application of the Community rules on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters,' governed by EU Regulation 44/2001.
Backed by the European Patent Office (EPO), the EPLA aims to establish a European Patent Judiciary to settle litigation concerning infringement and validity of European patents. It would establish a network of national courts of first instance and a court of appeal at EU level to interpret patent legislation. Backers of the idea argue that it would lead to considerable cost savings in conflict resolution and harmonise the interpretation of patent law. Opponents slam the lack of democratic control, particularly from the European Parliament, of the draft EPLA and argue that harmonising the interpretation of patent law should be carried out by existing EU bodies. Several member states back France's idea of dealing with patents disputes by giving the European Court of Justice the power to rule in appeal cases (see EUROPE 9332). (mb)