Opinion 1/09

Opinion delivered pursuant to Article 218(11) TFEU

(Opinion delivered pursuant to Article 218(11) TFEU – Draft agreement – Creation of a unified patent litigation system – European and Community Patents Court – Compatibility of the draft agreement with the Treaties)

Summary of the Opinion

1.        International agreements – Agreement creating a unified patent litigation system – Prior opinion of the Court – Opinion requested at the preliminary stage of negotiations or before opening negotiations – Opinion requested by the Council without consulting the Parliament – Admissibility – Conditions

(Art. 218(11) TFEU)

2.        International agreements – Agreement creating a unified patent litigation system – Creation of a European and Community Patents Court – Compatibility with the provisions of the Treaty

(Arts 262 TFEU and 344 TFEU)

3.        International agreements – Agreement creating a unified patent litigation system – Creation of a European and Community Patents Court – Exclusive jurisdiction of that court to hear actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field – Incompatibility with the institutional and judicial framework of the European Union

(Arts 4(3) TEU and 19(1) TEU; Arts 258 TFEU to 260 TFEU and 267 TFEU)

1.        Pursuant to Article 218(11) TFEU, the European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of the Treaties. That provision has the aim of forestalling complications which would result from legal disputes concerning the compatibility with the Treaties of international agreements binding upon the European Union. A possible decision of the Court, after the conclusion of an international agreement binding upon the European Union, to the effect that such an agreement is, by reason either of its content, or of the procedure adopted for its conclusion, incompatible with the provisions of the Treaties could not fail to provoke, not only in the internal European Union context, but also in that of international relations, serious difficulties and might give rise to adverse consequences for all interested parties, including third countries.

The fact that the adoption of an international agreement cannot occur until after consulting, and obtaining the approval of, the Parliament, and that the adoption of any related legislative measures within the European Union will be subject to a legislative procedure involving that institution has no effect on the power accorded to the Council, under Article 218(11) TFEU, to request an opinion from the Court.

Further, it is not a prerequisite condition of being able to submit a request for an opinion pursuant to that article that the institutions concerned have reached final agreement. The right accorded to the Council, the Parliament, the Commission and the Member States to ask the Court for its opinion can be exercised individually, without any coordinated action and without waiting for the final outcome of any related legislative procedure. In any event, the Parliament retains the right itself to submit a request for an opinion.

Moreover, a request for an opinion can be submitted to the Court before the commencement of international negotiations, when the subject-matter of the envisaged agreement is known, even though there are a number of possibilities still open and different points of view on the drafting of the texts concerned, if the documents submitted to the Court make it possible for the latter to form a sufficiently certain judgment on the question raised by the Council. The admissibility of a request for an opinion cannot be challenged on the ground that the Council has not yet adopted the decision to open the international negotiations.

(see paras 47-48, 53, 55-56)

2.        Article 262 TFEU cannot preclude the creation of a European and Community Patents Court. While it is true that under that article there can be conferred on the Court some of the powers which it is proposed to grant to that court, the procedure described in that article is not the only conceivable way of creating a unified patent court. Article 262 TFEU provides for the option of extending the jurisdiction of the European Union courts to disputes relating to the application of acts of the European Union which create European intellectual property rights. Consequently, Article 262 TFEU does not establish a monopoly for the Court in the field concerned and does not predetermine the choice of judicial structure which may be established for disputes between individuals relating to intellectual property rights.

Nor can the creation of a European and Community Patents Court be in conflict with Article 344 TFEU, given that that article merely prohibits Member States from submitting a dispute concerning the interpretation or application of the Treaties to any method of settlement other than those provided for in the Treaties. The jurisdiction which the draft agreement creating a unified patent litigation system intends to grant to the European and Community Patents Court relates only to disputes between individuals in that field.

(see paras 61-63)

3.        The international court envisaged in the draft agreement creating a unified patent litigation system, currently named the European and Community Patents Court, is to be called upon to interpret and apply not only the provisions of that agreement but also the future regulation on the Community patent and other instruments of European Union law, in particular regulations and directives in conjunction with which that regulation would, when necessary, have to be read, namely provisions relating to other bodies of rules on intellectual property, and rules of the FEU Treaty concerning the internal market and competition law. Likewise, the European and Community Patents Court may be called upon to determine a dispute pending before it in the light of the fundamental rights and general principles of European Union law, or even to examine the validity of an act of the European Union.

While it is true that the Court has no jurisdiction to rule on direct actions between individuals in the field of patents, since that jurisdiction is held by the courts of the Member States, nonetheless the Member States cannot confer the jurisdiction to resolve such disputes on a court created by an international agreement which would deprive those courts of their task, as ‘ordinary’ courts within the European Union legal order, to implement European Union law and, thereby, of the power provided for in Article 267 TFEU, or, as the case may be, the obligation, to refer questions for a preliminary ruling in the field concerned. The system established by Article 267 TFEU, which is essential for the preservation of the Community character of the law established by the Treaties, aims to ensure that, in all circumstances, that law has the same effect in all Member States and therefore establishes between the Court and the national courts direct cooperation as part of which the latter are closely involved in the correct application and uniform interpretation of European Union law and also in the protection of individual rights conferred by that legal order.

However, the draft agreement provides for a preliminary ruling mechanism which reserves, within the scope of that agreement, the power to refer questions for a preliminary ruling to the European and Community Patents Court while removing that power from the national courts. Further, if a decision of the European and Community Patents Court were to be in breach of European Union law, that decision 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 due to any infringements of European Union law attributable to them.

Consequently, 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 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.

(see paras 71, 78, 80-81, 83-84, 86, 88-89)