European and Community Patent Courts : Negative Opinion of the CJEU
09.03.2011
The CJEU has issued, on 8 march 2011, a negative <link http: curia.europa.eu jurisp cgi-bin external-link-new-window external link in new>Opinion 1/09 regarding the project of creation of a european and community patent courts.This project of international agreement was drawn up by the Council of the European Union which intented to create a european courts with an exclusive power concerning certain patent related legal action, such as actions for infringement of patents, action for revocation of patents and certain actions for damages or compensation.In the project submitted to the CJEU, the Courts was outside the institutional and judicial framework of the European Union and had a distinct legal personality under international law (the European patent concerns 38 Member States and is thus not limited to the 27 Member states of the European Union).The CJEU noted several inconsistencies with the European Union law.For example, a decision of the european and community patents courts could not be the subject of infringement proceedings nor could it give rise to any financial liability on the part of one or more Member states.The creation of a european and community patents courts would also deprive the national courts of their power to make a reference to the Court of Justice of the European Union by the preliminary ruling mechanism in the concerned subject-matters.Accordingly, the Court concludes that the creation of a european and community patents courts would deprive the juridications of the Member States of their powers regarding the interpreation and the application of European Union law, and would also deprive the CJEU of its powers to reply, by preliminary ruling, to the questions referred by those national courts. It would thus be detrimental to the uniform interpretation of the European Union law.and to the preservation of the very nature of this law.
