EuAccEplaEn

Community accession to EPLA needs assent from EP

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The European Patent Litigation Agreement (EPLA) is a Treaty project that aims to create a European Patent Court between signatories of the 31 countries of the European Patent Convention (EPC). It is not a European Union project. The Commission has stated that after the adoption of the "Council regulation on jurisdiction and recognition and enforcement in civil and commercial matters" ((EC) No 44/2001, of 22 December 2000), Members States do not have the power to sign the EPLA. Community accession to the EPLA may be a solution. There are indications that accession to the EPLA can only be concluded after the assent of the European Parliament has been obtained.


The EPLA draft agreement about EC accession:

And that is only at the EPLA side. For instance, the EPLA draft says:

Accession to the EPLA will (partially) imply accession to the EPC, will (partially) make the EPC Community law. As a result subsequent changes of the European Patent Convention will also be Community law. Most problematic aspects of accession to the EPC will be problematic aspects of accession to the EPLA.

The EPC can not only be changed by a diplomatic conference, the European Patent Organisation’s Administrative Council can change the “Implementing Regulations”, as well as Parts II to VIII and Part X of the European Patent Convention, thereby taking on the role of legislator. The constituting treaties of the European Community, with its precise rules on making Community laws, will be bypassed. The European Parliament will be bypassed. We will have Community law without democratic control. Accession to the EPC undermines the European Community’s constituting treaties.

Besides that EPLA has enough problematic aspects already.

Assent of European Parliament

Such an accession is executed under art 300 of the Treaty establishing the European Community. The European Parliament has to be consulted, or has to give assent. A essential difference.

We take a look at the second subparagraph of Article 300(3):

"By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained."

Art 300 : http://europa.eu.int/eur-lex/en/treaties/selected/livre257.html


Comment Ante Wessels

A European Patent Court may be seen as "a specific institutional framework".

Accession to the EPLA will have bugetary implications that may very well be important enough.

The EPLA definitely adds to the content of current internal acts. Accession to the EPLA can only be concluded after the assent of the European Parliament has been obtained. See below.

The European Parliament could already ask for an Opinion by the ECJ (see below).


Case law on 300(3)

1

A European Patent Court may be seen as "a specific institutional framework".

There seem to be no cases on "other agreements establishing a specific institutional framework by organising cooperation procedures".

2

There has been a case about "important budgetary implications", C-189/97, the EP went to the ECJ. The ECJ thought it not important enough, the EP lost. Accession to the EPLA will have bugetary implications that may very well be important enough.

http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&numaff=C-189%2F97&datefs=&datefe=&nomusuel=Parliament&domaine=RELA&mots=&resmax=100

3

Case C-317/04, part of it is about "infringement of the second subparagraph of Article 300(3) EC, because Directive 95/46 was amended;"

This question was never answered by the court, the agreement being invalid for other reasons. There is only an opinion of Advocate General Léger on it. Two quotes:

"181. That said, it seems that the Court has not yet ruled on the meaning to be given to the relatively vague expression ‘amendment of an act adopted under the procedure referred to in Article 251’."

"183. Generally speaking, I am of the opinion that, in order for there to be ‘amendment’ by an international agreement of an internal Community act adopted under the codecision procedure, one of the conditions is that the field of application of the agreement overlap with that of the internal act. In that case, the internal act may be amended by the international agreement, either if the agreement contains a provision which conflicts with one of those of the internal act or because the agreement adds to the content of the internal act, even when there is no direct conflict."

More on this case: http://wiki.ffii.org/EcjCaseC31704

http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&numaff=C-317%2F04&datefs=&datefe=&nomusuel=Parliament&domaine=TRAN&mots=&resmax=100


Comment Ante Wessels on case law 3

The second subparagraph of Article 300(3) protects the European Institutions. Important in this case is whether the European Parliament's prerogatives are infringed. Following Advocate General Léger's reasoning, this is the case if an "internal act may be amended by the international agreement, either if the agreement contains a provision which conflicts with one of those of the internal act or because the agreement adds to the content of the internal act, even when there is no direct conflict."

The EPLA definitely adds to the content of current internal acts. Accession to the EPLA can only be concluded after the assent of the European Parliament has been obtained.

Futhermore, accession to the EPLA will imply (partial) accession to the EPC, will (partially) make the EPC Community law (see above). As a result subsequent changes of the European Patent Convention will also be Community law. The European Parliament will have no influence on these changes, its prerogatives will be infringed in the future too. While not mentioned, an undermining of the constituting treaties of the Community is an even more important reason for assent to be needed.


Opinion

Art 300.6 mentions the possibility to ask for an opinion.

""6. 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 this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union."

Example:

http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&alldocs=alldocs&docj=docj&docop=docop&docor=docor&docjo=docjo&numaff=&datefs=&datefe=&nomusuel=Parliament&domaine=RELA&mots=%22A+request+for+an+Opinion%22&resmax=100

Here is art 48:

48: "The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded. (...) "

Statement Commission

Search form ECJ case law: http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=en

http://wiki.ffii.org/ComPatEn

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