European Parliament's Legal Service Says EPLA Is Illegal

by Ulrika Lomas, for LawAndTax-News.com, Brussels

21 February 2007

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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