JURI Committee considers Council version of Unitary Patent Regulation infringing EU Primary Law and leaves for Summer Break

After the last-minute amendments of the Unitary Patent Regulation (UPR) by the European Council on 28/29 June, who suggested

that Articles 6 to 8 of the Regulation [...] to be adopted by the Council and the European Parliament be deleted

lead to a removal of this matter from the EU Parliament’s agenda and unleashed a wave of revulsion among members of the EU Parliament in general and those of its legal committee (JURI) in particular (see here and here), the direction in which today’s JURI meeting would go was not utterly hard to predict.

And in fact, today’s press release confirmed what could have been expected anyway:

The European Council’s move to change the draft law to create an EU patent would “infringe EU law” and make the rules “not effective at all“, Bernhard Rapkay (S&D, DE), who is responsible for the draft legislation, told the Legal Affairs Committee on Tuesday. Most MEPs strongly criticised the European Council’s move and agreed to resume the discussion in September.

Apparently, this opinion is backed by the Parliament’s legal service, assuming that deleting Articles 6 to 8 UPR would “affect the essence of the regulation” thus be incompatible with EU law.

The Council’s move, pushed through by UK Prime Minister David Cameron to please his eurosceptics friends at home, was considered as a hostile act (“serious political precedent”, “oriental bazaar”, “haggling”, “breach of promise”, “unaccceptable violation of procedure”) especially by those members of the JURI committee who were mandated to nenegotiate the matter with the EU Council and the Commission (Bernhard Rapkay (S&D, DE), Raffaele Baldassarre (EPP, IT), Klaus-Heiner Lehne (EPP, DE). They had to cope with some pressure (cf. EPLAW briefing and JURI member Cecilia Wikström‘s  support for EPLAW’s wish)  but in the end recommended to not cancel Articles 6 to 9 (see PE478.655v01-00, page 5, item 16). Then, in December 2011, the whole package that was agreed upon with the EU Council (see here). Now Parliament members are “up in arms about this ’putsch’ by a body that has no legislative power“, as reported on europolitics.

Based on the information available, the  consolidated opinion of JURI, supported by the Parliament’s jurisconsult Christian Pennera, appears to be that without Articles 6 to 8 UPR the EU Patent Court system will be incompatible with Article 118 TFEU, reading

[...] the European Parliament and the Council [...] shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements.

as the European Court of Justice (CJEU) is the only authority that can assure the required uniformity of patents (see also our view on this issue here and here). According to some sources [1, 2], the only JURI member supporting the Council’s version is Sajjad Karim (ECR, UK), a conservative North England representativ and member of the parliamentary group of European Conservatives and Reformists, who stated

Firstly, in relation to Articles 6- 8, I personally have no difficulty with those provisions being excluded. I certainly don’t regard a system of referrals to the CJEU based on sort of delays with current workload being appropriate, especially when we have a specialized system [such as the proposed unitary patent system].

Cecilia Wikström (ALDE, SE), who fought side by side with EPLAW and others against the CJEU’s control of the EU patent system in December 2011 is reported to personally support the deletion of Articles 6 to 8 and only critisised the style of politics that lead to their deletion:

I fully understand the irritation of colleagues in this case [...], to find the first reading deal broken by the European Council especially in the way it was done after a session of the worst sort of closed door horse trading between capitals where national prestige overruled common good of Europe and EU citizens – this is a shame.

Nevertheless, it now appears that JURI is not intending to unwrap the whole package that was agreed upon in December 2011 with the EU Council (see here), as Rapporteur Rapkay clarified that “today is not a starting point for new negotiations” and that JURI shall stick to the draft text as agreed upon.

As this is might be a blessing in disguise – remember e.g. the hard fought text of Article 28 regulating the representation rights of certified European Patent Attorneys before the Unitary Patent Court -, Mr. Rapkay explicitly expressed that

if there is no EU patent, it’s the Council’s fault.

What that means is utterly clear: JURI and the EU Parliament will in no way accept any Unitary Patent Regulation without Articles 6 to 8 or any other regulation ensuring the legal control of the future EU patent (system) by the European Court of Justice (CJEU). Instead, JURI is well prepared to let the whole patent project fail if required. This, however, would be a remarkable act of self-confidence, as only very recently another intellectual property agreement was rejected by the EU Parliament, namely ACTA.  Before this background, some observers already start asking if there is any future for new IPR treaties in the European Union anyway.

JURI’s opinion cetainly puts a lot of pressure especially on David Cameron, who insisted on removing Articles 6 to 8 from the Regulation at the European Council meeting end of June. The British prime minister has maneuvered himself in a severe dilemma, as he neither can agree on letting those Articles in the Regulation without instigating a rebellion among eurosceptic Tory backbenchers, nor can he simply “walk away” from the negotiations since this would probably mean that the Unitary Patent would  take place without the United Kingdom and London’s share of the Central Division of the Unified Patent Court would vanish as well. Whatever option David Cameron might prefer, one can rest assured that London bookmakers already accept bets on Britain’s EU exit while British MEP Andrew Duff (lib-dem) expects that “the British MEPs elected in 2014 are likely to be the last“.

In any case, this turn means many more months of delay for the Unitary Patent Package as talks will continue not until the end of the summer recess, possibly in September.