The proposal for a European Patent Litigation
Agreement would commit its signatory states to an integrated
judicial system for patent disputes, including uniform rules of
procedure and a common appeal court.
Backed by Internal Markets Commissioner
Charlie McCreevy, the EPLA's European Patent Court would supercede
national courts, and critics have argued that the court would take
control of patent policy out of the hands of the elected European
Parliament and put it into the hands of unelected officials.
Critics worry that the EPLA could make software patents more
common.
The European Parliament debated the agreement
in October and though MEPs obtained concessions from McCreevy, they
still failed to back the plan. They asked for it to be examined
more closely amidst fears that the plan would make the awarding of
patents less accountable and more expensive.
The Parliament asked its Legal Service to
analyse how the EPLA would fit with existing rights, obligations,
laws and treaties that make up the 'acquis communautaire', the
essence of the European Union. The Legal Service advises the
European Parliament on legal issues and also acts as its
representatives in court actions.
The Legal Service concluded that not only do
some of the provisions of the EPLA directly conflict with an
existing EU Treaty, but that EU member states do not have the right
to construct new agreements on matters already governed exclusively
by the EU.
"Compliance with Article 98 of EPLA would
prima facie constitute a breach of Article 292 EC Treaty,"
said the Legal Service's report. Article 292 says that "member
states undertake not to submit a dispute concerning the
interpretation or application of this Treaty to any method of
settlement other than those provided for therein," which is taken
to mean that disputes between EU member states on matters of EU law
should be resolved exclusively by the European Court of
Justice.
Article 98 of the proposed EPLA says: "any
dispute between Contracting States concerning the interpretation or
application of this Agreement which is not settled by negotiation
shall be submitted, at the request of one of the States concerned,
to the Administrative Committee, which shall endeavour to bring
about agreement between the States concerned."
"If such agreement is not reached, any one of
the States concerned may submit the dispute to the International
Court of Justice for a binding decision," it says.
Those two sets of rules relating to how to
settle disputes compete, says the Legal Service, and in that case
the EC Treaty must take precedence.
It also says that member states are simply not
allowed to make an agreement between themselves concerning matters
already covered by EU laws and treaties, particularly where those
agreements could affect relations with countries outside of the
EU.
"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," said the Legal
Service.
The legal opinion also said that the EPLA
conflicts with a European Directive which already deals with
intellectual property. "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," it said.
The agreement, therefore, is not valid, said
the Legal Service. "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," it said.