返回概览 EU Patent Court violates EU Treaty

In its Opinion 1/09 of March 8, 2011, the European Court of Justice has answered a request of the Council of the European Union concerning the planned European Patent Court. In this Opinion the European Court of Justice has clarified that the envisaged agreement creating a Unified Patent Litigation System (currently named European and Community Patents Court) is not compatible with the provisions of the Treaty establishing the European Community.

Work is in progress since the year 2000 for a proposal for a Community patent being valid for the European Union (EU Patent), providing for the accession of the European Community to the EPC, the creation of a unitary industrial property right valid throughout the European Union which should be granted by the European Patent Office (EPO). A draft agreement has been prepared between the member states of the European Union, the European Union and third countries which are parties to the EPC, creating a centralized court with jurisdiction to hear actions related to European and Community patents. In this draft it is regulated that the planned court shall have inter alia exclusive jurisdiction in respect of actions for actual or threatened infringements of patents and supplementary protection certificates and related defences, including counterclaims concerning licences, actions for declarations of non-infringement, actions for provisional and protective measures and injunctions, actions or counterclaims for revocation of patents, and actions for damages or compensation derived from the provisional protection conferred by a published patent application.

In its above Opinion, the European Court of Justice has now set out that the above draft agreement for establishing a centralized European Patent Court is violating the principles laid down in the EC Treaty. In particular, the European Court of Justice is of the opinion that the planned court would deprive courts of member states of the European Union of their powers in relation to the interpretation and application of European Union law by referring a case to the European Court of Justice. Instead of this instrumentation established in the European Union for the interpretation of European Union law, an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the EU Patent and to interpret and apply European Union law in that field is conferred on a court which is outside the institutional and judicial framework of the European Union. Accordingly, the establishment of a European Patent Court as outlined in the above draft agreement would alter the essential character of the powers which the EC Treaty confers on the institutions of the European Union and on the member states of the European Union and which are indispensable to the preservation of the very nature of European Union law.

Download the full text of the opinion 01/09 under:

http://www.mueller-bore.de/tl_files/Decisions_EPO/court_violates_eu_treaty.pdf

Should you have any questions, please feel free to contact lenhard@mueller-bore.de

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