The European Union under the threat of patents, a column by D. Cohn-Bendit and M. Rocard

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On July 4th, 2012, while examining the issue of a single European patent, the Members of the European Parliament (MEPs) will have the opportunity to reaffirm the autonomy of the Union to decide on its innovation policy, warn Daniel Cohn-Bendit and Michel Rocard : “What is at stake is the urgent need for a Europe, which suffers from a growing democratic deficit, to not waive its power for the benefit of a body, the Patent Office in Munich, whose mission is not to act in the best interests of European businesses and citizens.”

The monetary issues are not the only ones where the European Union is experiencing tension between Member States. The dissent is rampant in seemingly more technical areas, but where Brussels' laborious decisions have also a significant impact on the lives of citizens and businesses. The reform of European patent system, currently under discussion, is a perfect example, revealing a gradual withdrawal of EU policy in favour of economic vested interests.

For over sixty years, the Union tries to establish a Community patent system, which is supposed to encourage innovation and thus enhance the competitiveness of European companies. Until now, the examination leading to the grant of a patent in Europe is centralised in the Office of Munich, but the granted monopoly to inventors is then enforced country by country. This fragmentation adds up costs associated with required translations and payment of renewal fees to each and every national patent office. Everyone agrees on the principle to establish a single patent for the whole European Union, with a unified jurisdiction that would have the competence for enforcement of the rights associated with such a unitary patent. But the proposed implementation by the European Commission raises controversies and questionings on how it is stretching the founding principles of the Union.

First, Italy and Spain have vigorously opposed that English, German and French may be the only available languages for this new Union patent. The Commission and other Member States have therefore chosen in December 2010 to circumvent the requirement for unanimity on language issues, by deciding to legislate according to the enhanced cooperation procedure. Such a procedure exists in EU law since the Treaty of Amsterdam and has been extended with successive EU enlargements. Its purpose is to allow a Europe, composed today by twenty-seven Member States, to move forward on some issues, even if some Member States do not yet fulfil all requirements to implement the related reforms at the same speed than other ones. But in the case of the unitary patent, the enhanced cooperation procedure is not used at all to prevent a group of States from being slowed down by some others, who are expected to join the precursors sooner or later. It is rather a way to overcome a requirement for unanimity, while the reasons given by Italy and Spain are not contextual or temporary, but rather political and not likely to change. The latter two countries are excluded from the unitary patent and have initiated in spring 2011 an application for annulment of the enhanced cooperation procedure before the Court of Justice of the European Union.

This has not not prevented the Commission, the twenty-five participating States to this enhanced cooperation, and rapporteurs for the Parliament from rushing things forward at a spanking pace. From their closed-door negotiations, it is only known that an agreement had been reached in early December 2011. The Council had planned to approve it a few days later, with an inauguration ceremony in Warsaw before the end of the year. But eventually it had to be cancelled, officially because of a disagreement between Munich, London and Paris that were competing for the seat of the new unified patent court. Meanwhile, under the pressure from rapporteurs, threatening that if the texts were not adopted in accordance with what had been negotiated with the Council, the whole project would fail, the Legal Affairs Committee of the European Parliament has rejected all the amendments other than those endorsing these negotiations.

Blindly voting not only undermines the role of legislators in Parliament. It also raises a problem on the content of the accepted text. Indeed, what the MEPs of the parliamentary committee have endorsed amounts to waive more autonomy to the Office of Munich, which is a body which is not bound by EU law, which is governed mainly by the heads of national patent offices and which is financed through fees on the patents it decides to grant. There is nothing in the treaties that prevents the European Union to politically intervene on the decisions of the Munich Patent Office. On the contrary: by choosing to delegate the grant of unitary patents to a non-EU organisation, the EU is required to submit it to the same controls as if these patents had been granted by an EU agency. The Court of Justice of the European Union will not hesitate to condemn such a breach of EU rules. Unless some amendments are voted to reintroduce the primacy of the Union decision-making power. And such amendments were tabled for this first vote in the Committee of Legal Affairs, but they were rejected without even having being discussed!

These amendments have been filed again for the plenary vote of the whole European Parliament on Wednesday 4 July 2012. It is important that legislators do not flee from their responsibilities. This vote is the ultimate opportunity to reaffirm the autonomy of the Union to decide for its innovation policy. It is the legal and institutional legitimacy of the unitary patent which is at stake. And beyond this: the urgent need for a Europe, which suffers from a growing democratic deficit, to not waive its power for the benefit of a body, the Patent Office in Munich, whose mission is not to act in the best interests of European businesses and citizens.

This column was first published in French by Mediapart