Unified Patent Court has an EU treaty legality problem, said ex-CJEU judge Melchior Wathelet

By Benjamin HENRION | April 1, 2024

Brussels, 30th March 2024 — Melchior Wathelet, ex-judge at the European Court of Justice (CJEU), said in a conference two days before the launch of the Unified Patent Court (UPC) that the construction has a serious legal problem, still depriving National Courts to interpret EU law (art267TFEU). The UPC aim to legalize software patents in Europe, without any intervention possible of the European Court of Justice (CJEU), with part-time technical judges working also for large corporations such as Nokia or Airbus.

Two days before the launch of the Unified Patent Court (UPC), former CJEU’s Avocate general Melchior Wathelet said in a conference that the whole construction was running against the jurisprudence of the CJEU on ‘Autonomy of EU law’, as National Courts cannot be removed from interpreting EU law by the Unified Patent Court.

Melchior Wathelet mentioned the jurisprudence Achmea (on which he issued an opinion as Avocate general) where the CJEU declared an intra-EU investment court between the Netherlands and Slovakia as not being a ‘Common Court’ between Member States, as the UPC claims to be. This investment court had to interpret EU law, without any link to National Courts, the guardians of EU law. The Court found such international investment court was an infringement of Art267TFEU.

FFII attended the conference, and it was mentioned that Art267TFEU was raised in front of the German Constitutional Court, but the Court found a way not to escalate the question to the CJEU, using a dubious excuse that the complainant was not directly “concerned” by the issue.

The Unified Patent Court has to interpret EU law, such as the 2004 Intellectual Property Enforcement Directive (IPRED), outside of National Courts.

The UPCA was designed to ignore the 2011 Opinion 1/09 on the previous attempt to install a pan-European Patent Court (UPLS):

80. While it is true that the Court has no jurisdiction to rule on direct actions between individuals in the field of patents, since that jurisdiction is held by the courts of the Member States, nonetheless the Member States cannot confer the jurisdiction to resolve such disputes on a court created by an international agreement which would deprive those courts of their task, as ‘ordinary’ courts within the European Union legal order, to implement European Union law and, thereby, of the power provided for in Article 267 TFEU, or, as the case may be, the obligation, to refer questions for a preliminary ruling in the field concerned.

81. The draft agreement provides for a preliminary ruling mechanism which reserves, within the scope of that agreement, the power to refer questions for a preliminary ruling to the Patent Court (PC) while removing that power from the national courts.

CJEU Opinion 1/09 para 80 and 81 eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62009CV0001

While the validity of the UPCA Treaty itself could not be directly challenged at the CJEU, since the EU is not party to the Agreement, however a part of the EU law (the Brussels1 regulation) had to be modified to say that the Unified Patent Court is a ‘common court’ to the Member States, on the same level as the Benelux Court of Justice, which involves National Courts:

For the purposes of this Regulation, each of the following courts shall be a common court:
(a) the Unified Patent Court established by the Agreement on a Unified Patent Court signed on 19 February 2013
(the ‘UPC Agreement’); and
(b) the Benelux Court of Justice established by the Treaty of 31 March 1965 concerning the establishment and
statute of a Benelux Court of Justice (the ‘Benelux Court of Justice Treaty’).
BRUSSELS1, REGULATION (EU) No 542/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 15 May 2014
amending Regulation (EU) No 1215/2012 as regards the rules to be applied with respect to the
Unified Patent Court and the Benelux Court of Justice, eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014R0542

Any EU citizen, a company or an association could ask a National Court to verify the validity of such regulation, and ask a preducial question to the CJEU.