Court of Justice blocks unified European patent court

The CJEU has found the proposed EEUPC to be incompatible with EU treaties because it would deprive national courts of their right to request preliminary rulings on patent disputes from Europe’s highest court.

The Court of Justice released its opinion on the compatibility of the draft agreement on the EEUPC (European and European Union Patent Court) with EU treaties on March 8, agreeing with the conclusion of Advocate General Kokott’s earlier draft opinion.

The draft agreement to establish the European patent court would be an international treaty and so outside of the institutional and judicial framework of the EU if it came into effect.

It would have given the EEUPC exclusive jurisdiction to hear actions concerning the proposed Europe-wide EU patent, as well as actions concerning the present European patent. The Court of Justice based its decision on the EEUPC’s jurisdiction over the proposed European-wide patent.

The Court of Justice said: “[The patent court] becomes, in the field of its exclusive jurisdiction, the sole court able to communicate with the [Court of Justice]...[This] 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...”

It added: “[C]onsequently, [this] 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 Council of the EU requested the opinion of the Court of Justice in 2009 under Article 218(11) (called Article 300(6) at the time) of the Treaty on the Functioning of the European Union.

Claire Bennett, a specialist senior lawyer in DLA Piper LLP’s intellectual property and technology group, said that EU member states can set up bodies, such as the Benelux court system, within the EU by international treaty that have a duty to interpret the law within their remit in accordance with EU laws.

She said: “But the key to understanding the Court of Justice’s decision here is the duty to apply EU laws. The member states intended to give exclusive jurisdiction to this body that would not be within the judicial framework of the EU, divesting the ordinary courts of the member states of their obligation to apply EU laws and refer questions to the Court of Justice. The proposed regime therefore wouldn’t be under the Court of Justice’s ultimate control.”

There may be objections to a European patent court under the Court of Justice’s control.

Bennett said: “There is a perception, rightly or wrongly, that the Court of Justice is trying to protect its workload, its power and its influence. The problem may be that, in simplistic terms, many of the laws that the Court of Justice considers are ‘home-grown’ European laws to do with issues that have been generated by the creation of the EU, whereas patent rights are an existing, well-developed body of law, the bulk of which is only tangentially related, if at all, to core EU concerns.”

“The general consensus is that specialist courts with proven expertise in patent matters are very important, and it is those national courts that have specialist patent expertise and see the most activity. The Court of Justice doesn’t have this expertise and so an EU patent litigation system which has the Court of Justice overseeing it does not engender confidence and so will not be acceptable to industry.”

The Council of the EU has given its approval for the 25 of the 27 EU member states that wish to use enhanced co-operation to create a unitary patent in Europe to do so, it announced on March 10, notwithstanding the Court of Justice’s opinion of the court system intended to enforce it.

Spain and Italy have not given their support to the use of enhanced co-operation at this stage.

Alasdair Poore, a partner at Mills & Reeve LLP and president of the Chartered Institute of Patent Attorneys, said: “[The Court of Justice’s decision] creates a major headache: will businesses be interested in using a single Europe-wide patent if there is not a single well-respected court in which to enforce the patent?”

“[The decision] seems to undermine totally the proposals for a unitary EU patent, and with it the aspiration to create a level playing field with the US. The work will now be on to see whether something can be resurrected from the ashes.”