According to an Opinion issued by the Court of Justice of the European Union on 8 March 2011, the draft agreement for the creation of a European and Community Patent Court would not be compatible with European Union law. This Opinion follows the request made by the Council to the Court of Justice to obtain its opinion on the compatibility of the envisaged agreement with European Union law.

The Opinion 1/09 from the Court of Justice of the European Union about the draft international agreement that would create a court with jurisdiction to hear litigation related to the European patent and the future Community patent, considers that such court would be an institution outside the institutional and judicial framework of the European Union. It would therefore be an organisation with a distinct legal personality under international law.

Following this line, the draft agreement confers on this court exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of patents, in particular actions for actual or threatened infringement of patents, actions for revocation of patents and certain actions for damages or compensation. National courts from Member States would therefore be divested of that jurisdiction and accordingly retain only those powers which do not fall under the exclusive jurisdiction of the European and Community Patent Court.

According to it, and despite the Court has already accepted in the past that an international agreement may affect its own powers provided that the indispensable conditions for safeguarding the essential character of those powers are satisfied, it considers that in this case the draft agreement would provide the European and Community Patent Court with the duty to interpret and apply not only the envisaged international agreement, but also provisions of European Union law.

The Court of the EU also considers that this new Court would not only affect the jurisdiction of the Court of Justice of the EU, as it would also deprive national courts and tribunals of the power or even the obligation to refer questions to the Court for a preliminary ruling in the field of patents, given that the draft agreement provides for a preliminary ruling mechanism which reserves to the European and Community Patent Court the power to refer questions for a preliminary ruling while removing that power from the national courts. The Court points out that if a decision of the European and Community Patent Court breached EU 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.

European and Community Patent Court and EU Patent, two separate questions

The draft agreement on the European and EU Patent Court was developed in the Council after the relaunch of the patent reform debate in 2007. In March 2009, the Commission adopted a Recommendation to the Council to authorise the Commission to open negotiations on the draft agreement with non-EU countries, and later on, in June 2009, the Council submitted a request to the CJEU on the compatibility of the draft agreement with the EU Treaties.

Following the Court's Opinion on this matter, the Commission has welcomed its decision and will analyse the concerns raised by the Court, working with the Presidency of the Council and the Member States to find as quickly as possible the best solutions in the interest of the patent system and its users. However, the Commission also pointed out that the agreement on the European Patent Court and the creation of the unitary patent protection through enhanced cooperation are two distinct projects, and there is no legal reason for Member States not to adopt the decision authorising enhanced cooperation creating unitary patent protection on the Council to be held on 10 March.