EU Council: Something To Hide? Might Legal Opinion Tun Out To Be A Bombshell?

Recently I spotted an entry for Document 15856/11 in the Public Register of the EU Council. The paper is titled OPINION OF THE LEGAL SERVICE – Draft agreement on the European Union Patent Jurisdiction (doc.13751/11) – compatibility of the draft agreement with the Opinion 1/09 and marked confidential (“LIMITE“). After having filed a request based on Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents I was served with a heavily redacted version of the requested Document.

In the effect, all significant portions of the Document were deleted. The only real disclosure is to be drawn the introductory narrative:

At the Competitiveness Council on 29 September 2011 the Legal Service was asked about the compatibility with Opinion 1/091 of the Court of Justice of the European Union (the “Court of Justice”) of a draft agreement on the European Union Patent Jurisdiction (hereinafter “the current draft agreement”), elaborated by the Presidency of the Council in September 20112. This contribution further develops and constitutes a written version, requested by the Council, of the statement made orally at that meeting.

The (formal) reason for not publishing the Document was indicated in boldface on the title page:

This document contains legal advice protected under Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, and not released by the Council of the European Union to the public. The Council reserves all its rights in law as regards any unauthorised publication.

Well, what does said Regulation 1049/2001 say on the confidentiality of legal advice? Here is an excerpt from Article 4 para. 2 thereof (emphasis added by me, AHH):

2. The institutions shall refuse access to a document where disclosure would undermine the protection of:
— commercial interests of a natural or legal person, including intellectual property,
— court proceedings and legal advice,
— the purpose of inspections, investigations and audits,
unless there is an overriding public interest in disclosure.

So, they obviously assume that there is no public interest in that legal opinion which might be suited to override the institution’s interest to keep it secret.

What is really going on behind the scenes? Well, where there are no liquid facts, speculation must flourish:

On July 11, 2011, another confidential Document 12704/11 conveying a Note from the General Secretariat of the EU Council addressing the ominous Friends of the Presidency Group titled Creating a unified patent litigation system – Note from the Luxembourg delegation was put on the Register. This Document 12704/11 is available now, disclosing:

Luxembourg supports the idea of a single European patent and thus favours the creation of an effective, unified litigation system to avoid a proliferation of different patent cases in different courts.

In its opinion 1/09 of 8 March 2011, the Court of Justice of the European Union (hereinafter “CJEU”) cites a number of fundamental difficulties which lead it to conclude that the draft international agreement submitted with a view to achieving the objective of a unified litigation system is not compatible with the provisions of the TEU and the TFEU.

Both the Commission (in an initial non-paper, Annex II to 10630/11 PI 54) and the Hungarian Presidency (new draft international agreement, 11533/11 PI 68) seek to address the CJEU’s concerns.

However, the suggestions for making the draft international agreement compatible with primary EU law raise a whole series of questions, which are set out in this note.

Any solution to the problem of how to create a unified patent litigation system has to hold water in institutional terms and, of course, be fully in line with the CJEU’s opinion.

The points raised by the Luxembourg delegation are as follows:

(1)
Pursuant to Article 19(1) of the TEU, Member States’ courts and the CJEU are the guardians of the European Union’s legal order and judicial system.

Article 267 of the TFEU provides for direct cooperation between the CJEU and national courts to ensure full application and uniform  interpretation of Union law in all the Member States.

The national courts thus have the task of implementing Union law as “ordinary” courts within the EU legal order, with the power, or, as the case may be, the obligation, to refer questions to the CJEU for preliminary ruling.

In the CJEU’s opinion 1/09, it criticises any judicial arrangement that would deprive Member States’ national courts of this task by replacing them with an international court with no real link with Member States’ judicial systems.

How is this fundamental concern, which the CJEU reiterates in the “Miles” judgment of 14 June 2011 (case C-196/09), to be addressed?

(2)
In the Commission’s non-paper (Annex II to 10630/11 PI 54) and under the new draft international agreement (11533/11 PI 68), it is proposed that an international patent court be set up by an agreement concluded between the Member States themselves. The European Union would not be party to it.

However, this international agreement would require the EU acquis to be adjusted (in particular, the “Brussels I” Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) and is likely to affect it.

In keeping with the “AETR” case law and Article 3(2) of the TFEU, the EU has exclusive competence to conclude an international  agreement insofar as its conclusion may affect common rules or alter their scope.

Would exclusive competence to conclude this agreement not lie with the EU?

(3)
The new international court would apply and interpret not only future regulations implementing enhanced cooperation on the single patent, which would form part of the EU acquis for the participating states, but also the TFEU rules on the internal market and the Charter of Fundamental Rights.

Under these circumstances, even if there were no exclusive EU competence, is it legally possible for EU Member States to set up an international court between themselves, to apply EU law (primary law, Charter of Fundamental Rights, secondary legislation) without the EU being involved in the conclusion of the agreement setting it up?

(4)
Safeguards are needed to ensure that the international patent court abides by Union law. It is accordingly proposed to stipulate that infringement proceedings may be brought against all the contracting Member States jointly if the international patent court infringes Union law.

Article 258 of the TFEU allows the Commission to bring proceedings against a Member State if it considers that that Member State has failed to fulfil an obligation under the Treaties.

Is Article 258 of the TFEU a sufficiently solid legal basis to authorise the Commission to bring proceedings against the contracting Member States for collective failure to fulfil an obligation, resulting in some cases in joint liability, if EU law is infringed by the international court?

(5)
Would a system of this type, of joint liability by contracting Member States, not imply that each of the Member States would have to waive its option under Article 259 of the TFEU, whereby any Member State may refer a matter to the CJEU if it considers that another Member State has failed to fulfil an obligation under the Treaties? Would systematically depriving the Member States of an option laid down by the Treaties be valid?

(6)
Subject to certain conditions, CJEU case law has developed the principle that a Member State may be held liable for damage incurred by individuals as a result of infringements of EU law which are attributable to it, especially where the infringement derives from a ruling by the Member State’s court of last resort.

If EU law is infringed by the international patent court, it is suggested that the Member States participating in the court should be held jointly and severally liable.

This raises two questions:

As there are no detailed EU rules on State liability for damage caused to individuals by infringements of EU law, the State concerned would have to make reparation for the damage suffered under national liability law. If the contracting Member States are jointly and severally liable, under what legal framework will the details of rights to reparation be determined?

Joint and several liability by the Member States implies tangible financial reparation. How far will the cost of this reparation be shared between the Member States participating in the international court ? The reference to “proportional compensation” in Article 14c(3) of the new draft international agreement does not really solve the problem.

The introductory narratives of both Documents 12704/11 and 15856/11, taken prima facie, appear to match each other quite well. This might be taken as a hint towards an assumption that the original, non-redacted version of Document 15856/11 indeed answers to the questions raised in Document12704/11.

If this assumption is true, what does that mean?

Clearly there is some legitimate public interest in learning the legal opinion on as to whether or not the UPC Agreement bears risks of infringing core aspects of the Opinion of the Court of Justice of the European Union 01/09. It would surely have been an option for the staff formally deciding on my request to have full access to Document15856/11 to state that this interest is overriding the need to protect legal advice and hand me over an non-redacted version thereof.

However, they did not.

Implicitly, they said that there is a strong need to keep this legal advice secret.

It now is up to you to consider by exercising some educated guesswork what might be written down in the Original Document. Probably something which caused EU Officials and/or EU Council Diplomats to be not amused.

The formal reasons given in the letter conveying the decision appear not to be well suited to dilute such concerns (underlining in the Original):

[...] Document 15856/11 is an opinion of the Council’s Legal Service related to a draft agreement on the European Union Patent Jurisdiction as elaborated by the Presidency of the Council in September 2011. That agreement is designed as an instrument of international law to which the Union itself would not become a party. The opinion requested by the Council analyses the compatibility of the said draft agreement with Opinion 1/09 of the Court of Justice of the European Union. It therefore contains legal advice except for its paragraphs 1, 2 (first sentence) and 4 to 15.

That legal advice is related to ongoing deliberations in the Council. To begin with, these deliberations are for several reasons politically and legally particularly complex and sensitive. First, they are politically related to an ongoing decision-making process on the creation of a unitary patent protection 1, a process that is in itself subject to controversial debate. Second, political decisions are in this case particularly shaped by and conditional upon complex legal considerations. Finally, participating Member States would have to implement a political agreement by means of ratification of an instrument of international law. This could give raise to further political and legal debate in the ratifying Member States.

It follows that divulgation of the legal advice in question would undermine the protection of legal advice, since it would make known to the public an internal opinion of the Legal Service, intended for the members of the Council. The possibility that this legal advice be disclosed to the public, may lead members of the Council to display caution when requesting written advice in such politically and legally complex and sensitive matters from its Legal Service. Moreover, the Legal Service could come under external pressure which could affect the way in which legal advice is drafted and hence prejudice the possibility of the Legal Service to express its views free from external influences. Lastly, disclosure of the legal advice would also affect the ability of the Legal Service to effectively intervene in proceedings before the Union courts.

In addition, public release of document would risk to further complicate the ongoing complex and sensitive decision-making process described above thus compromising the Council’s capacity to find agreement on the dossier.

Finally, the described negative effects of divulgation to the public could equally affect the ratification process in the Member States willing to participate in the envisaged agreement. This would ultimately delay or put into question the entry into force of the envisaged international agreement. For that reason public disclosure of the document would undermine the protection of international relations of the Member States. [...]

Maybe this matter deserves to be duly re-considered in the light of the Judgement of the Court (First Chamber) in Case C-506/08 P dated July 21, 2011.