11 July 2012

JURI Committee Insitst on CJEU Control after Council's political Move (to be cont'd in Sept)

Despite what initially sounded like good news from the European Council summit on 28/29 June 2012, the epic EU unitary patent saga will probably continue for many more months, as reported lately on the ksnh::law blog:

At the European Council meeting, a truly European agreement on the seat of the Unified Patent Court could be reached, namely a split of responsibility between the three candidate cities of Paris, London, and Munich, so that the whole EU Patent Package (unitary patent, translation arrangement, unified patent court) was initially expected to quickly proceed to full adoption by the EU Parliament and the EU Commission.

The problem was, however, that UK Prime Minister David Cameron could, under the strong influence of his eurosceptics allies at home, push through the 'suggestion'
that Articles 6 to 8 of the [Unitary Patent] Regulation [...] to be adopted by the Council and the European Parliament be deleted
meaning that substantive EU patent law will not any more be subject to legal supervision by the European Court of Justice (CJEU), understood by some observers as nothing less than an open declaration of deep mistrust against the Union's highest court, if not political warfare.

Meanwhile, however, we saw that the allegedly clever move of UK Prime Minister David Cameron  to force Mr Hollande and Ms Merkel to accept the removal of the CJEU from substantive EU patent jurisdiction in fact blocks progress rather than promotes it, as the EU Parliament and its Legal Committee (JURI) are far from accepting such a severe amendment to the draft text of Unitary Patent Regulation agreed upon with the EU Council in December 2011 (see here)

Since then two press releases have been issued by the Parliament that show both the Parliament's level of  irritation and JURI's willingness to refuse any text in which the CJEU has not the final say about the EU patent system:
The press release of 3 July 2012 informed that the EU Parliament, which originally wanted to nod through this matter on 4 July 2012, removed this item from the agenda under the harsh critics of the Rapporteurs in charge of the negotiations ("scandalous", "breach of procedure", "oriental bazaar").

The press release of 10 July 2012 clarified the view of rapporteur Rapkay, expectedly the opinion of the JURI committee as a whole:
The European Council's move to delete three key articles from the long-awaited EU patent regulation, and thus greatly reduce the European Court of Justice's power to enforce it, "infringes EU law" [...]. "If you take that content out, there is nothing left to regulate" [...]. What remains "would not be effective at all" in ensuring EU-wide protection of patent rights. 
and further 
[...]  "Today is not a starting point for new negotiations.We shall stick to the agreement" reached in December 2011. "If there is no EU patent, it's the Council's fault"
That latter statement expresses a decent level of determination and aggressiveness against the EU Council in general and the UK prime minister in particular. There is a legitimate fear that the Unitary Patent will sooner or later be drawn into the shallows of British domestic politics, as Mr Cameron might already fight for his position as Great Britain's head of government.

We might witness an interesting political summer on the British isles while waiting on JURI to continue discussing this issue with the Parliament's legal service after the summer recess, possibly in September.