Unitary Patent: the Brussels problem

The author of the EU Commission's webpage
on the Unitary Patent realises his
entirely inadvertent omission

For the Unitary Patent to come into force we all know by now that 13 states, including the UK, France and Germany, need to ratify the Unified Patent Court (UPC) Agreement. Well, although this is what the Commission's webpage says (as does the EPO's page on the subject), these conditions are necessary but not sufficient - which is a logician's shorthand for saying that whoever wrote the Commission's press release was being economical with the truth.

Apart from those ratification requirements, the Unitary Patent cannot become a reality until the current regulation on jurisdiction and enforcement of judgments across the EU, a.k.a. the Brussels I Regulation, is also amended -- and this might not be trivial, especially since not all 27 member states are on board.

This point was highlighted and brought to the IPKat's attention in a comment left by Gibus -- one of our frequent and valued commenters -- on a post on the Dutch Battle of the Tablets.  Gibus explains the issue further:

 

Since Brussels I regulation (EC 44/2001) is referred to in this judgement, I jump on this to raise two issues which seem to not have been considered by any Kat interested by the Unitary Patent here.

First, it has been rightly recalled by some Kats here and by others elsewhere that the unitary patent regulation could only enter into forced once the Unified Patent Court (UPC) international agreement has been ratified by France, Germany and the United-Kingdom (raising sometimes some concerns with regard to the referendum about UK leaving EU as proposed recently by Cameron [Merpel interjects that apparently this might not be greeted with universal disappointment, were the UK to go its own way] and 10 other Member States. But what has not been pointed out is that, according to Article 89 UPC, the UPC cannot entered into force before Brussels I regulation has been amended with specific provisions with regard to UPC jurisdiction.

Too bad, a recast of Brussels I regulation has just been voted by the EU Parliament and the Council (EU 1215/2012, published on EUOJ of December 20th, 2012, L 351/1). But nothing about UPC was taken on board in this recast. Therefore the Commission has to make another proposal which has to go through the EU legislative procedure. That is: the UPC agreement, nor the unitary patent regulation cannot enter into force before another amendment of Brussels I is voted by the European Parliament and the Council. Who has said that first unitary patents should be granted in early 2014?

But the second point is that the Commission could be quite reluctant to propose such an amendment of Brussels I regulation. Because it would prove without any doubt that the UPC is affecting, and even is altering, the scope of common EU rules. According to Art. 3.2 TFEU, in such a case, the Union would have exclusive competence for the conclusion of an international agreement. This has been recently confirmed by the CJEU (Case C‑370/12 of November 27th, 2012, about the Treaty establishing the European stability mechanism (ESM) that it follows from Art. 3.2 TFEU that “Member States are prohibited from concluding an agreement between themselves which might affect common rules or alter their scope.” Therefore, Art. 3.2 TFEU shall apply to the UPC international agreement, and the EU shall have exclusive competence to conclude UPC. There is no way to consider that the unitary patent regulation could amount to an explicit authorisation from to EU to waive its exclusive competence. Therefore, Member States are not authorised to conclude the UPC between themselves.

Any thoughts on this?

For a more in-depth analysis of why the UPC Agreement was deemed to require the amendment of Brussels I, see the post here by Axel H. Horns on the KSNH Law Blog. Thanks to Gibus for his comment (and indeed thanks to all those who take time to comment on the IPKat's posts).