Sara-Jayne Clover

The European Court of Justice this morning handed down  its ruling on the legality of proposals to create a unified patent litigation system in the EU. The justices conclude:

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. 

The decision can be read in full here.

The ECJ has now put out a press release with more information on its decision:

...the Court states that if a decision of the European and Community Patent Court were to be in breach of European Union law it could not be the subject of infringement proceedings nor could it give rise to any financial liability on the part of one or more Member States.

In those circumstances, the Court considers that the envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union 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, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law. The agreement would also affect the powers of the Court to reply, by preliminary ruling, to questions referred by those national courts. Accordingly, 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.

Consequently, the Court concludes that the envisaged agreement creating a European and Community Patent Court is not compatible with the provisions of European Union law.

The European Commission has released a statement welcoming this morning's clarification by the ECJ:

The European Commission welcomes the delivery today of the opinion of the Court of Justice of the EU (CJEU) on the compatibility of the envisaged agreement on the European and EU Patent Court with the EU Treaties. Now that the opinion is available, the Commission will analyse it very carefully with a view to identifying appropriate solutions. 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. The creation of unitary patent protection is legally distinct from the creation of the European Patent Court. It is important to maintain the momentum to bring decades of discussion on the EU patent to a quick and successful solution through enhanced cooperation. In parallel, the Commission will work equally quickly to find an appropriate way forward for the Patent litigation system following the Court's opinion.

More information and analysis to follow.