After Poland took over EU Presidency from Hungary on July 01, 2011, the Council of the European Union has published on July 08 a Document 12661/11 titled Organisation of work on the patent reform under the Polish Presidency:

The Presidency wishes to inform delegations of its decision to assign to the Friends of the Presidency Group the task of continuing the work on the following three files:

(a) Proposal for a Regulation of the European Parliament and the Council implementing enhanced cooperation in the area of the creation of unitary patent protection1 based on Article 118(1) TFEU;

(b) Proposal for a Council Regulation implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements2 based on Article 118(2) TFEU;

(c) Draft agreement on a Unified Patent Court and draft Statute .

The Friends of the Presidency Group is invited to regularly report back to COREPER about the outcome of its discussions.

To ensure political steering of the discussions, the responsibility for negotiations should be put on IPR Attachés, who could be accompanied by experts in relevant fields as necessary, in a 1+1 format. The Friends of Presidency Group will not have interpretation.

The Presidency intends to organise the first meetings of the Friends of the Presidency Group on 11 and 18 July, to which invitations will be forwarded to the IPR Attachés.

Well, what the heck is that “Friends of the Presidency Group”? Although Google surely is your friend, it appears to be a bit difficult to obtain any information on this obscure body. However, the Slovakian EU Presidency of 2008 had published a hint:

The following important but sensitive area is the issue of comitology. Considering that the entire reform of the committee procedure and executive phase of decision-making in the EU relates to the role of the European Parliament in the decision-making process – particularly its executive phase – it is important that the Council and Parliament be placed on an equal footing in the regular legislative procedure as provided for in the Lisbon Treaty. Article 249b of the Reform Treaty provides a new legal basis for regulating the transfer of executive powers and the comitology mechanism, as well as for the latter’s deletion. May I inform you that last week Coreper established a “Friends of the Presidency Group – comitology”, which will hold its first meeting on 30 January 2008. The Group will be tasked with examining alignment proposals according to the omnibus method. The European Parliament will be promptly informed of the progress achieved.

Article 249B mentioned above and inserted into the by the Lisbon Treaty reads as follows:

Article 249 B

1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.

The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.

2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows:

(a) the European Parliament or the Council may decide to revoke the delegation;

(b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act.

For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.

3. The adjective “delegated” shall be inserted in the title of delegated acts.

Now this wording appears having been re-consolidated to Article 290 of the Consolidated version of the Treaty on the Functioning of the European Union (TFEU).

What does all this mean in terms of prospects for progress in this matter?

During a public session held in Luxembourg on July 27, 2011, the Council unanimously agreed on general approaches on two draft regulations implementing enhanced cooperation in the area of unitary patent protection (11328/11). The agreement follows the two proposals submitted by the Commission last April, which contain provisions to implement enhanced cooperation in the area of the creation of unitary patent protection and the outcome of the ministerial debate that took place on 30 May. The first proposal prescribes how patent holders can obtain European patents with unitary effect that ensures uniform protection for their invention (9224/11 plus Addendum 1 and Addendum2), and the second one contains the translation arrangements (9226/11 plus Addendum 1 and Addendum 2).

According to the press statement, the Council authorised the launch of enhanced co-operation in the field of the creation of unitary patent protection on 10 March after having received the European Parliament’s consent to the use of this procedure on 15 February.

The enhanced co-operation is governed by the stipulations of Articles 326 to 334 TFEU.

At the time being I do not fully understand what the implications of the above-cited decision of the Polish EU Presidency to assign to the Friends of the Presidency Group the task of continuing the work on the  patent reform files will be. Obvoiusly there is little transparency forseen as to the availability of procedural details to the general public. Maybe that the referral to the Friends of the Presidency Group means that the EU Commission now is in control of what happens next, being bound by intitutionalised feedback from the EU Council and from EU Parliament via COREPER. I would like to encourage readers of this Blog to comment on this if more light can be shed on the procedures of the Friends of the Presidency Group in conjunction with enhanced co-operation according to Articles 326 to 334 TFEU.

About The Author

Axel H. Horns

German & European Patent, Trade Mark & Design Attorney

One Response to Organisation Of Work On EU Patent Reform Under Polish EU Presidency

  1. Gibus says:

    Friends of the Presidency Group is a working group that prepares work for Coreper. Just like the working group on intellectual property (patents) that had prepared the work on EU Patent and EEUPC until the smash from ECJ. But Friends of Presidency Group has a more “horizontal” role. It can be guessed that this time the work has not being left to the working group on patents because there are a lot of legal issues that go beyond patent law, as the ECJ Opinion has shown.

    Actually, giving the multiple loopholes in the legal basis of the regulation on the unitary patent (see my analysis), I would say that the need for multidisciplinary experts is far from useless…

    There is some information on the work of the Council here.