Should we be impressed by this legal construction of the implementation of a political compromise around three corners?

Not even a single second! Here’s why there it indisputably impossible to find that the Unitary Patent regulation, amended according to Cyprus compromise, would be compliant with Art 118.1 TFEU.

The proposed solution to replace articles 6 to 8 of the regulation is based on a definition of the protection conferred by a unitary patent that would lie in national laws.

First, this protection can only be considered uniform because of harmonisation of these disposition by the UPC. Whereas Art. 118 gives power to EU to define such a uniform protection in accordance with the ordinary legislative EU procedure, it will actually be define in an international agreement.

That is, the expected uniform protection is created without any input from the Parliament but only by Members States, not acting inside Council with EU voting rules, but in their own name by agreement. While the “ordinary legislative EU procedure” require by Art. 118.1 TFEU implies a co-decision procedure between the European Parliament and the Council of the EU (in which each Member States has a weighted vote, and where majority is defined in EU Treaties).

Moreover any subsequent revision (Art. 58d UPC) of measures defining the uniform protection will be decided,members of UPC Representative Committee, that is likely heads of national patent office, with one vote by representative (Art. 9a UPC), and with a right of veto (Art. 58d (3)).

In clear, the uniform protection is not provided in accordance with the ordinary legislative procedure.

This is why this compromise is not better than June suggestion by Heads of States that Arts. 6-8 should be deleted. The European Parliament has strongly opposed such a deletion as being not compliant with Art. 118 TFEU. The Cyprus compromise is likely to be rejected in the same way. Members of the European Parliament are beginning to see this concern. They have been asked to posttpone the plenary vote…