New developments in the EU system of judicial protection: the creation of the Unified Patent Court and its future relations with the CJEU
| Published date | 01 February 2017 |
| DOI | 10.1177/1023263X17693186 |
| Date | 01 February 2017 |
| Subject Matter | Articles |
Article
New developments in the
EU system of judicial
protection: the creation of
the Unified Patent Court
and its future relations
with the CJEU
Jacopo Alberti*
Abstract
Created in 2013 after a troubled and long standing debate, the Unified Patent Court (UPC)
is a ‘Common Court’ of 25 EU Member States that will adjudicate on ‘classical’ European
Patents and on the new European patents with unitary effect. Although its establishing
Agreement has not yet entered into force, the establishment of the UPC makes for a very
interesting case study. It is a unique construct in the field of international courts and it
might well inspire the creation of other ‘common jurisdictions’ in other fields lying on the
border between international and EU law. Future dialogue between the CJEU and the UPC
will have to deal with some controversial issues that might require some innovative
approaches in the CJEU’s jurisprudence and some caution on the part of the UPC. Despite
all the efforts made to mitigate the international origin of the UPC, it remains a funda-
mental anomaly in the system of EU courts, and it clearly demonstrates that the current EU
system of judicial protection requires profound reconsideration.
Keywords
unitary patent, preliminary ruling, primacy, EU judicial protection, differentiated integration
* Research Fellow, University of Milan
Corresponding author:
Jacopo Alberti, Research Fellow at the University of Milan.
Email: jacopo.alberti@unimi.it
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(1) 6–24
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17693186
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1. Introduction
In a multi-speed Europe, international judges may well be found not only outside the EU legal
order, but also at the very heart of the EU. The most prominent example of this is the Unified Patent
Court (UPC), created after a long-standing debate in 2013 through an international agreement
1
signed by 25 of the 27 Member States, which, at that time, were members of the EU (with Spain
and Poland withholding their signature; at that point in time, Croatia had not yet joined the EU).
The UPC Agreement has not yet entered into force, since the ratification process is still ongoing.
The UPC will adjudicate over the ‘classical’ European patents granted by the European Patent
Organization and the new European patents that, by a ‘special agreeme nt’ among a group of
European states, may have a unitary effect on the latter’s territories according to Article 142 of
the European Patent Convention.
2
Oddly enough,
3
the ‘special agreement’ requested by Article 142 of the European Patent
Convention has not materialized as an international treaty, but in the form of two EU regulations
on the European patent with unitary effect and on its translation arrangements,
4
adopted through
the enhanced cooperation procedure at EU level. Therefore, this kind of patent is inextricably
linked to the EU legal order and has to respect, above all, the EU Internal Market rules.
In light of this entanglement of international and EU law, two surprising issues emerge: first, the
‘unitary patent’ is granted by the European Patent Office, that is an international agency of which
the EU is not a party and which is composed of 38 states, including 10 non-EU states.
5
This point
has interesting repercussions for the EU institutional structure, which may only indirectly affect the
future dialogue between the UPC and the Court of Justice of the EU (CJEU) and thus will not be
dealt with here.
6
Second, the judicial authority that will be called to adjudicate over the new ‘unitary patent’ is
not an EU court or, at least, not an ordinary EU court. Indeed, the UPC does not belong to the
1. Agreement on a Unified Patent Court, [2013] OJ C 175/1 (UPC Agreement).
2. Convention on the grant of European Patents, signed in Munich on 5 October 1973 as revised on 17 December 1991 and
on 29 November 2000.
3. The possibility for an EU Regulation to be characterized as a special agreement for the meaning of Article 142 of the
European Patent Convention is an interesting topic that cannot be discussed here. See, H. Ullrich, ‘Harmonizing Patent
Law: The Untamable Union Patent’, Max Planck Institute for Intellectual Property & Competition Law Research Paper
12-03 (2012), https://papers.ssrn.com/sol3/papers.cfm?abstract_id¼2027920.
4. Regulation No.1257/2012/EU of the European Parliament and of the Council of 17 December 2012 implementing
enhanced cooperation in the area of the creation of unitary patent protection, [2012] OJ L 361/1. Council Regulation No.
1260/2012/EU of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent
protection with regard to the applicable translation arrangements, [2012] OJ L 361/89.
5. See footnote 2 above.
6. The Member States participating in the enhanced cooperation are not accountable for the European Patent Office’s
action to the same extent they are for the UPC (see further below in this section). Article 9(2) of the Regulation No. 1257/
2012/EU provides for the setting up of a Select Committee within the European Patent Office, made by representative of
the Participating Member States and the Commission, for ensuring the governance and supervision of the activities
related to the tasks conferred to the Office. The UPC has jurisdiction, pursuant to Article 32(1)(i) of its establishing
Agreement, on acts enacted by the Office carrying out the tasks referred to in Article 9 of Regulation No. 1257/2012/EU
(i.e., those related to unitary patents). Therefore, the protection against the EPO’s decision seems to rely fully on the
UPC, on its willingness to adhere to the interpretation of EU Law made by the latter and by the CJEU and on the political
influence of the Select Committee. For a broader overview on this topic, see Case C-146/13 Spain v. Parliament and
Council, EU:C:2015:298; and Case C-147/13 Spain v. Parliament and Council, EU:C:2015:299, that deemed this
delegation of power compatible with the Treaties.
Alberti 7
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