Unified Patent Court is a fake Common Court and violates CJEU’s jurisprudence of the last 10 years, will explode at launch, says Pr Jaeger
The Unified Patent Court (UPC) is a court outside of the design of the European Union, and won’t survive a legal challenge at the European Court of Justice (CJEU), says Pr Thomas Jaeger, legal researcher at the University of Vienna, who has analyzed in a paper “Delayed Again? The Benelux Alternative to the UPC” the jurisprudence of the CJEU for the last 10 years regarding international courts that have to interpret EU law. Over the last 10 years, The European Court of Justice of the European Union (CJEU) has defined a clear jurisprudence on what consists a “common court” between the Member States, via a series of decisions that all follow the same logic: international courts that have to interpret EU law have to have functional links with the National Courts of the Member States, which the UPC does not have. Pr Jaeger says in his paper:
“the narrative was invented that the UPC is a court common to the Member States. It is not, of course, because the functioning and jurisdiction of the court remained the same as envisaged for the EEUPC.”
He cites the CJEU’s Miles judgment (2011), which explains why the Benelux court is acceptable, and other models like the UPCA are not (lack of functional links with the national Courts of the Member States):
“‘It is true that the Court of Justice has held, in … Dior, that … a court common to a number of Member States, such as the Benelux Court of Justice, [is] able to submit questions to the Court of Justice, in the same way as courts or tribunals of any of those Member States.