Brussels, 17th Feb 2022 — The European Court of Justice has confirmed that EU law cannot be outsourced to international courts in its “PL Holdings sarl Vs Poland” decision. It is problematic for the architecture of the Unified Patent Court (UPC), which is an international court outside of the judicial system of the European Union, despite the claims of its supporters. The European Court of Justice (CJEU) has recalled in PL Holdings that Member States cannot remove disputes from the judicial system of the EU which deal with EU law:
Lastly, it follows both from the judgment in Achmea, and from the principles of the primacy of EU law and of sincere cooperation, not only that the Member States cannot undertake to remove from the judicial system of the European Union disputes which may concern the application and interpretation of EU law […].– Court of Justice of the European Union, Press Release No 190/21, Luxembourg, 26 October 2021, Judgment in Case C-109/20, PL Holdings, https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-10/cp210190en.pdf
Since EU law covering patents is the Biotech directive and the Enforcement directive (IPRED), the interpretation of EU law is removed from the judicial system of the European Union, which is composed of the CJEU and the National Courts. The PL Holdings decision follow the same line of thought as the Achmea decision, where the European Court of Justice dissolved intra-EU investment courts (ISDS). In its Achmea decision (2018), the CJEU recalled the same functional link principle with the National Courts, as in Miles (2011):
However, the arbitral tribunal at issue in the main proceedings is not such a court common to a number of Member States, comparable to the Benelux Court of Justice.
