Ten Written questions to the Commission and the Council

Subsequent to the opposition of Italy and Spain, the proposal for a regulation on the unitary patent is implemented through an enhanced cooperation. Is this choice still workable, given that Spain and Italy have already filed a complaint with the Court of Justice of the European Union (CJEU), arguing that the creation of the unitary patent – since it could only be achieved at the Union level – should be considered as an exclusive competence1 of the European Union (UE)?

The regulation is supposed to constitute a “special agreement within the meaning of Article 142 of the Convention on the Grant of European Patents (EPC)” (Art. 1). EPC is an international agreement. An international agreement, as defined in Article 2 of the Vienna Convention on the Law of Treaties is: “concluded between States in written form and governed by international law”. Consequently, how can a regulation, such as the regulation on the unitary patent, constitute a “special agreement“ within the meaning of Article 142 EPC, while an EU regulation is not an international agreement?

Article 142 EPC allows a group of Contracting States to the EPC to conclude an agreement. Since the regulation on the unitary patent is a normative act of the EU, and since the EU cannot be considered as a contracting state of the EPC, is the proposal compliant with Article 142 EPC?

The legal basis of the regulation on the unitary patent is Article 118, paragraph 1 of the Treaty on the Functioning of the European Union (TFEU). This article gives competence to the EU for the creation of a new patent title. Consequently, can the proposal for a regulation on the unitary patent be considered to comply with Article 118.1 TFEU, given that the unitary patent is not defined as a new patent title of the EU?

The legal basis of the regulation on the unitary patent, Article 118.1 TFEU, is included in shared competences between the Union and the Member States. In this area of shared competencies, the European Union and the Member States can both adopt some legislation, and should cooperate. When the EU has exercised its competence, Member States are not allowed any more to do so. In the context of the unitary patent, this could mean that once the EU has adopted a regulation, based on Art. 118.1 TFEU, the Member States would not be free any more to conclude on their own an international agreement. Consequently, are Member States allowed to conclude a special agreement, within the meaning of Article 142 EPC, without the EU being also a party to this international agreement?

The power to grant European patents with unitary effect has been delegated to the European Patent Office (EPO) – an international organisation which is outside the Union. Should the provisions of the EPC used in order to exercise this delegation of powers be deemed to be included in Union Law, for these rules to be liable in the same conditions as if the unitary patent was granted by an EU agency?

In this context, should the regulation explicitly reaffirm the autonomous character of the unitary patent, so the unitary patent be subject only to the provisions of this Regulation, to the Treaties and Union Law, and, to those provisions of the European Patent Convention which are binding upon every European patent and which shall consequently be deemed to be provisions of this Regulation?

According to the proposal for a regulation on the unitary patent, can a citizen, who is a party in a litigation about a unitary patent, refer through a competent jurisdiction, a request for a preliminary ruling of the CJEU about substantive patent law?

It is proposed that an international patent court be set up by an agreement concluded between the Member States themselves. The European Union would not be party to it. However, this international agreement would require the EU acquis to be adjusted (in particular, the "Brussels I" Regulation on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters) and is likely to affect it. In compliance with the "AETR" case law and Article 3(2) of the TFEU, the EU has exclusive competence to conclude an international agreement insofar as its conclusion may affect common rules or alter their scope. Would exclusive competence to conclude this agreement not lie with the EU?

The new international court would apply and interpret not only future regulations implementing enhanced cooperation on the single patent, which would form part of the EU acquis for the participating states, but also the TFEU rules on the internal market and the Charter of Fundamental Rights. Under these circumstances, even if there were no exclusive EU competence, is it legally possible for EU Member States to set up an international court between themselves, to apply EU law (primary law, Charter of Fundamental Rights, secondary legislation) without the EU being involved in the conclusion of the agreement setting it up?