Motion on the project for a European Patent Court by Law professors and lawyers

The undersigned professors of Law and lawyers consider it necessary to draw attention to the situation of the project for a European court system specifically for patents on inventions.

This system will be the result of a treaty to be agreed between the majority of European Union Member States. The aim of the treaty, still at draft stage, is to create a new court of an international nature to give rulings on the validity and infringement of European patents and future unitary patents. The jurisdiction of this proposed court will take precedence over that of national courts.

On 8 March 2011, the Court of Justice of the European Union gave a negative opinion on the draft treaty submitted by the Council. It declared this draft incompatible with the European Union Treaty and the Treaty on the Functioning of the European Union (opinion n° 1/109).

Thereafter the draft treaty was amended with particular regard to the objections made by the Court.

Nevertheless, serious doubts have been expressed on the conformity of the new draft with these objections.

In the main these doubts arise from the fact that the draft deprives the national courts of their own jurisdiction on those matters under consideration, hence depriving those taking legal action (companies) from being judged by them while, according to the Court, the European Union judicial system is founded upon joint cooperation between EU and national courts.

We would like to draw attention to the fact that the opinion of the Legal Department of the Council was sought on the compatibility of the modified draft with that of the Court. Public access to the complete wording of this opinion has been prohibited (Council document 15856/11 of 21 October 2011; refusal of disclosure confirmed by the Council: see doc. 5926/12 of 2 March 2012, adopted at a meeting on 8 March).

If this opinion concludes that the modified project conforms to the Treaties, it is not apparent why the content is inaccessible to the public.

This secrecy reinforces the doubts expressed beforehand and elsewhere (see also the Luxembourg delegation’s note of 11 July 2011, Council document 12704/11, item 1).

Without making any pronouncement on whether these doubts are well-founded, we consider them reasonable and that they must be dispelled.

Current discussions on the locations of the various institutions in the future court system and the rules for procedure seem premature and pointless if, as these doubts would lead us to believe, it is later determined that the whole system is illegal because this court system would have been instigated in violation of the European Union Treaty and the Treaty on the Functioning of the European Union.

The right to legal security for those embarking on legal actions (European companies) is thus called into question. What will be the consequences for the judgments which may be made under this system?

Moreover, at institutional and budgetary levels, it is at the very least inadequate to already sign a draft project, to undertake work on adapting other texts (particularly the Munich Convention, the Lugano Convention, and Regulation 44/2001), to seek ratification by Member States and to allocate substantial budgets to establish this court system. All this work and substantial expense may be incurred to no avail.

On the contrary and in the legitimate and democratic concern for legal security and public expenditure, we believe it is vital and urgent to throw light upon this precise legal issue of the very principle of a court with international authority and which excludes the jurisdiction of Member State courts.

If possible, a new opinion on this fundamental point should be sought from the Court of Justice.

Examining this issue will not unduly delay the progress of the project. On the contrary, this could then make more rapid progress if it were endowed with a better legal security. Moreover, the time taken for this opinion could be profitably used to overcome some already apparent flaws in the project and to develop the very many rules of procedure which will have to be adopted for the proposed new court system. Industry has additionally and often made it known that it wants to be made aware of the system in all its procedural and practical details before expressing a definitive opinion.

Moreover, we regret that this process of discussion and adoption of a project which is so important for European companies is not being openly conducted. It is not just that the above opinion has been made secret; this is also true for document 18239/11 of 6 December 2011 containing a proposal for compromise on various important aspects of the project (refusal of disclosure: document 6051/12 of 2 March 2012, adopted at the Council meeting on 8 March).

Public debate is even more necessary since the project, in its last known state, also incited a great deal of criticism at several levels, for the practical implications, the quality of judges, the cost to companies, etc.

The signatories to this petition invite their colleagues throughout Europe to give their support to this motion.

Signatories:

• Bernard REMICHE, professor at the Katholieke Universiteit Leuven, member of the Brussels bar, (Belgium)
• Fernand DE VISSCHER, member of the Brussels bar, visiting lecturer at the Katholieke Universiteit Leuven, (Belgium)

And:

• John J. ALLEN, member of the Amsterdam bar (Netherlands)
• Enrico BONADIO, lecturer at the City Law School, City University of London (United-Kingdom)
• Niklas BRUUN (Prof.), professor at the University of Helsinki (Finland)
• William CORNISH, professor emeritus at the University of Cambridge (United-Kingdom)
• Vincenzo DI CATALDO, professor at the University of Catania (Italy)
• Richard EBBINK, member of the Amsterdam Bar (Netherlands)
• Valeria FALCE (Prof.), European University of Rome (Italy)
• Mario FRANZOSI, member of the Milan bar, visiting professor at the University of Washington, former professor at the University of Parme and at the University of Milan (Italy)
• Gustavo GHIDINI, professor at the University of Milan and at the University Luiss Guido Carli (Rome), lawyer at Rome (Italy)
• Charles GIELEN (Prof. Dr.), member of the Amsterdam bar, professor at the University of Groningen (Netherlands)
• Jean-Louis GOUTAL (Prof.), professor emeritus at the Law School of Grenoble, director emeritus of CUERPI (France)
• Ruprecht HERMANS, member of the Amsterdam bar (Netherlands)
• Mindaugas KISKIS (Prof. Dr.), Mykolas Romeris University / INVENT Institute (Lithuania)
• Matthias LAMPING, Max-Planck-Institut für Immaterialgüter- und Wettbewerbsrecht, Munich (Germany)
• Jacques LARRIEU (Prof.), professor at the University of Toulouse (France)
• Jochen PAGENBERG (Dr.), lawyer at Munich (Germany)
• Antoon QUAEDVLIEG (Prof.), professor at the University Radbout at Nijmegen (Netherlands)
• Andreas RAHMATIAN (Dr.), lecturer at the University of Glasgow (United-Kingdom)
• Ingrid SCHNEIDER (Prof. Dr.), University of Hamburg, lecturer Political Science and senior researcher at the Research Centre on Biotechnology, Society, and the Environment (BIOGUM) at the University of Hamburg (Germany)
• Andrea STAZI, aggregate professor of Comparative Law - European University of Rome (Italy)
• Dariusz SZLEPER, lawyer at the Paris Court, lecturer on Patent Law at CEIPI (Centre d’Études internationales of la Propriété Intellectuelle) (Strasbourg) (France)
• Luca TREVISAN, member of the Milan bar (Italy)
• Dirk VISSER (Prof. Dr.), professor at the University of Leiden, member of the Amsterdam bar (Netherlands)
• Michel VIVANT (Prof.), professor at Law School of Sciences Po (Paris) (France)
• Alexander VON MÜHLENDAHL (Dr.), visiting lecturer, Queen Mary College, University of London, lawyer at Munich (Germany)

And with the support of:

• Alejandro ANGULO, lawyer at Barcelone (Spain)
• Christoph ANN (Prof. Dr.), professor at the Technical University of Munich (Germany)
• Maciej BARCZEWSKI (Dr.), University of Gdansk (Poland)
• Nicolas BINCTIN (Prof.), professor at the University of Poitiers (France)
• Jan BRINKHOF, professor emeritus at the University of Utrecht (Netherlands)
• Laurence BRUNING-PETIT, in her personal capacity, European Patent Office (EPO) (Germany)
• Nicolas DECKER, former president of the bar, lawyer at the Court (Luxembourg)
• Victor-Vincent DEHIN, lawyer at Liège (Belgium)
• Josef DREXL (Prof. Dr.), Max-Planck-Institut für Immaterialgüter- und Wettbewerbsrecht, Munich (Germany)
• Séverine DUSOLLIER, professor at University Faculties of Namur (Belgium)
• Antonina Bakardjieva ENGELBREKT, professor at the University of Stockholm (Swede)
• Damian FLISAK (Dr.), lawyer at Varsovie (Poland)
• Jean-Christophe GALLOUX, professor at the Panthéon-Assas University (Paris II), president of IRPI (France)
• Johanna GIBSON, Herchel Smith professor of Intellectual Property Law, Queen Mary College, University of London (United-Kingdom)
• Inge GOVAERE, professor of European Law, Jean Monnet Chair in EU Legal Studies, Ghent University (Belgium)
• Jorge GRAU, lawyer at Barcelone (Spain)
• Christopher HEATH, in his personal capacity, European Patent Office (EPO) (Germany)
• Reto M. HILTY (Prof. Dr.), Direktor, Max-Planck-Institut für Immaterialgüter- und Wettbewerbsrecht, Munich (Germany)
• Marie-Christine JANSSENS (Prof. Dr.), professor at the Katholieke Universiteit Leuven (Belgium)
• Bartosz KRAKOWIAK, president of AIPPI Poland, Patent and Trademark attorney, Warsaw (Poland)
• Nari LEE, associate professor, HANKEN School of Economics, Helsinki (Finland)
• Marianne LEVIN, professor at the University of Stockholm (Swede)
• Franck MACREZ, lecturer at University of Strasbourg (Centre d’Études internationales de la Propriété Intellectuelle (CEIPI)) (France)
• Hans-Wolfgang MICKLITZL, professor, European University Institute (Italy)
• Timo MINSSEN, associate professor at the University of Copenhagen (Denmark)
• Vytautas MIZARAS (Prof.), University of Vilnius, lawyer (Lithuanie)
• Jan Bernd NORDEMANN (Prof. Dr.), lawyer at Berlin (Germany)
• Rainer OESCH (Prof.), University of Helsinki (Finland)
• Ansgar OHLY (Prof. Dr.), University of Bayreuth (Germany)
• Anselm Kamperman SANDERS (Prof.), professor at the University of Maastricht (Netherlands)
• Frank SAUNIER, lawyer at Lyon (France)
• Jens SCHOVSBO (Prof. Dr.), University of Copenhaguen (Denmark)
• Tine SOMMER, professor at the University of Aarhus (Denmark)
• Olaf SOSNITZA, University of Würzburg (Germany)
• Hans ULLRICH (Prof. Dr.), visiting lecturer at College of Europe (Germany)
• Paul VAN DONGEN, member of the Amsterdam bar (Netherlands)
• Geertrui VAN OVERWALLE (Prof. Dr.), professor at the Katholieke Universiteit Leuven (Belgium) and at the University of Tilburg (Netherlands)

List as of September 5th, 2012, 17h.

Support messages to be sent to: bernard.remiche@uclouvain.be [2] or fernand.devisscher@uclouvain.be [3]