The proposed European and Community Patents Court is not compatible with European Union law

March 8, 2011

The Court of Justice of the European Union has announced its opinion that the agreement creating the European and Community Patents Court is not compatible with European Union law. The opinion is very clear: “The envisaged agreement creating a unified patent litigation system (currently called ‘European and Community Patents Court’) is not compatible with the provisions of the EU Treaty and the FEU Treaty”.

A short summary of the background is that the Council of the European Union has drawn up a draft international agreement, to be concluded between the Member States of the European Union, the European Union itself and other countries which are parties to the European Patent Convention, with the objective of creating a European and Community Patent Court – composed of a court of first instance with a central division and local and regional divisions, a court of appeal and a joint registry – with jurisdiction to hear litigation related to European patents and future Community patents. To check the compatibility of the envisaged agreement with European Union law, the Council of the European Union asked for the opinion of the Court of Justice of the European Union (CJEU). In July 2010, the Advocates General gave a negative opinion, which was followed today by the opinion of the CJEU (opinion 1/09 dated 8 March 2011).

The CJEU states that the European and Community Patents Court would be outside the institutional and judicial framework of the European Union. The draft agreement gives the European and Community Patents Court an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field. This would deprive the courts of the Member States of the European Union of their powers in relation to the interpretation and application of European Union law and the CJEU of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, 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.

However, the CJEU also compared to the situation of the Benelux Court of Justice and states that since this is is a court common to a number of Member States and therefore situated within the judicial system of the European Union, its decisions are subject to mechanisms capable of ensuring the full effectiveness of the rules of the European Union. This might be an indication that the opinion is not necessarily the end of the common litigation system, although we might see such a system only of the Member States of the European Union.

This is also confirmed by a press release issued today by the European Commission wherein it is stated that it will work with the Presidency of the Council and the Member States to find as quickly as possible an appropriate way forward for the Patent litigation system following the Court's opinion. The press release also mentions that the opinion should have no impact on the decision foreseen to be taken by Member States on 10 March at the Competitiveness Council following the consent of the European Parliament authorising a move to enhanced cooperation in the area of unitary patent protection, since the creation of unitary patent protection is legally distinct from the creation of the European and Community Patents Court.

Maria Stenbäck
European Patent Attorney and Partner

The opinion of the CJEU can be found here.

A press release from the CJEU can be found here.

The press release from the European Commission can be found here.

8 March 2011