Delivering its decision last week, the European Parliament's Legal Service
stated that the proposed European Patent Litigation Agreement (EPLA) is illegal
under EU rules.
In October 2006, MEPs voted by 494 votes in favour, 109 against and 18 abstentions
to postpone any decision on whether to approve the Community accession to the
European Patent Litigation Agreement (EPLA), and called for "significant
improvements" to the text.
During the debate on the matter held in Strasbourg in late September, Internal
Market Commissioner, Charlie McCreevy advocated the ratification of the Agreement,
arguing that it would make the European patent system more effective.
With the Community Patent dossier blocked in the Council for lack of agreement
over the language regime, the Commission had put forward the proposal of acceding
to the EPLA. The EPLA would introduce a European Patent Court with jurisdiction
to deal with infringement concerning European patents. The EC accession to the
agreement would therefore allow the Court to rule over patents in all EU Member
States.
The majority of the MEPs did not reject the idea of acceding EPLA outright,
but stressed their reservations over the present form of the draft text. They
revealed that they were particularly concerned about the lack of democratic
control over the procedures to grant a patent.
To counter these concerns, MEPs asked for significant revision of the provisions
of the Agreement, with regard to democratic control, judicial independence and
litigation costs. Moreover, MEPs asked the EP Legal Service to give its advice
on the possible overlap between the EPLA and the acquis communautaire.
Delivering its interim conclusions last week, the Legal Service observed that:
"1) The purpose of the Agreement on the establishment of a European patent
litigation system ("EPLA") is to set up the European Patent Judiciary
to settle litigation concerning the infringement and validity of European patents.
2) Where common rules have been adopted, the Member States of the European
Community no longer have the right, acting individually or even collectively,
to undertake obligations with non-member countries which affect those rules.
3) Directive 2004/48/EC harmonizes national legislation on the enforcement
of intellectual property rights. Not only would EPLA govern matters already dealt
with by this Directive, but there are also contradictions between the two instruments
on a number of matters.
4) EPLA aims to lay down rules in certain areas governed by Regulation 44/200
I concerning jurisdiction and the recognition and enforcement of judgements.
Notwithstanding the specific provisions of EPLA governing its relations with
that Regulation, the conclusion of EPLA would affect the uniform and consistent
application of the Community rules on jurisdiction and the recognition and the
enforcement of judgements in civil and
commercial matters.
5) Compliance with Article 98 of EPLA would prima facie constitute a breach
of Article 292 EC Treaty.
6) It follows that the Community's competence is exclusive for the matters
governed by EPLA and Member States therefore are not entitled on their own to
conclude that Agreement."
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