Analysis of the opinion from the European Court of Justice on the unified Patent Court

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On March 8th 2011, the Court of Justice of the European Union (CJEU) published its opinion on the compliance of the Patent Court (PC) draft agreement with European Union (EU) Treaties. This opinion was long-awaited for: the setting up of an unified jurisdiction is a pillar of the unitary patent currently discussed in Brussels. As April expected, the CJEU curtly axed the project, underlining its incompatibility with the EU basic principles.


In its opinion, CJEU starts with the background for the draft agreement for a unified jurisdiction: it aims at establishing a single court for judging all patents litigations, whereas currently those litigations have to be brought before each national jurisdiction.

The CJEU then brings up observations expressed by the European Parliament, Member States and the European Commission during the May 2010 hearing, and concludes on its competence on the matter, before deciding that the project is incompatible with dispositions of the EU's Treaties.

This decision is particularly significant: the CJEU grounds its reasioning on the very bases of EU law and caselaw to strike down the proposed PC. Indeed CJEU considers that the draft agreement deprives national courts from some of their competence. This would disrupt the curent structure linking the CJEU and national courts, a structure that ensures compliance with European law. To quote the European Court: "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 European Union law"1. This position is based upon three main arguments: non-compliance with the primacy of European Union law, need for a control by national courts, need for harmonization between EU et national courts.

The primacy of European Union law was seemingly forgotten by the unified jurisdiction proposal

The proposed Patent Court would 2 have been "vested with exclusive jurisdiction in respect of a significant number of actions brought by individuals in the field of patents". The Court concludes from this argument that "the courts of the contracting States, including the courts of the Member States, are divested of that jurisdiction".

Even if an international agreement could create a jurisdiction, the conformity to EU treaties depend on several requirements3. Consequently, an agreement with third-party signatories could give new competences to the CJEU if and only if this agreement does not limit the competences of the latter, and if the change in the CJEU's competences does not alter its mission and does not undermine the independence of the EU judicial system.

In this case however, the patents jurisdiction would have4 to decide on the compliance of patents brought to court with past, current and future European law. This would have included matters relative to fundamental rights that may arise as part of a ruling regarding patents. This would allow a jurisdiction that's external to the EU to rule on matters relative to European citizens' fundamental rights, without the EU institutions having any word to say in the process.

Asserting a core principle: national courts must remain competent

With this argument5, the CJEU states what is probably the most significant setback for any project aiming to unify patent-related courts: patent-related litigations must be dealt with by national courts in each member state. These courts cannot yield their jurisdiction to an international court created by an international agreement6.

The importance of this clarification must be stressed, as it blocks any attempt from Member States or from the European Commission to bypass CJEU's opinion by dropping the unitary patent at EU level to create a jurisdiction unified solely around the European patent delivered by EPO, outside of EU's scope. This type of agreement had been considered by EPO within the EPLA project (European Patent Litigation Agreement, dealing with the resolution of litigations relative to European patents). The CJEU's verdict is crystal clear: any EPLA-like project wouldn't comply with EU law.

The Court of Justice underlined that two processes allowing European legal harmonization wouldn't work regarding patents. Thus, the project challenges both the EU legal harmonization process and the compliance to Europe's legislation.

The challenge against preliminary rulings mechanisms

The CJEU explains in its decision7 that referrals for preliminary rulings8 could no longer have been enforced, as any issue would only have been referred to ECJ at the initiative of the Patent Court, thus excluding national courts. However, the mechanism of preliminary ruling aims "to ensure in all circumstances" that EU law is applied equally in all member states thanks to referrals to the CJEU. What was possible within a jurisdiction including only EU Member States is no longer possible when the jurisdiction also include third-part states, as it is the case with the PC9.

Consequently, the lack of opportunity to proceed to a full referral for a preliminary ruling could jeopardize the harmonization of EU law, since the control procedures would be no longer in place.

No infringement proceedings would have been available against the PC

The same way, the proposal for a unified patent court does not allow infringement proceedings in the case of failure to fulfil obligations10, making the court de facto unaccountable in respect with EU law. In the case of a violation of European law11, infringement proceedings for failure to fulfil obligations enforce EU law within all member states, by allowing other member states and the Commission to launch proceedings against any country infringing on EU law. This mechanism also apply to courts and court decisions.

However the rulings by the Patent Court could not be under the scrutiny of such procedures to ensure the full application of the treaties, because the court is not organized within a state but has its own legal personality; consequently, a mechanism to enforce infringing procedures would be irrelevant; This implies that European law would not be harmonized through the CJEU, but that the CJEU and the PC would each have their own interpretation and their own case law, without any control of its caselaw for the latter.

This lack of harmonization of the law may seem technical, but has outreaching consequences that go beyond a mere competence squabble between courts: to ensure that the law is applied the same way everywhere is a mean to fight against arbitrary decisions, and the existence of different interpretations would wreck this idea of law unification.


The conclusion made by the Court is final:

"the envisaged agreement […] 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 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."

As a consequence, CJUE's opinion demands a drastic re-building of the foundations of the unified jurisdiction agreement to ensure its compliance with the democratic values of the EU. And without a unified jurisdiction, any regulation on the unitary patent would be pointless12. The reminders of those principles which were presented throughout the Court opinion show that there is no alternative but to give up an antidemocratic, unchecked organization like the EPO13 and to include the unitary patent administration and its jurisdiction within EU institutions.

This analysis was first published on April website .