In Defense Of The Court Of Justice Of The European Union?

This is a follow-up to Volker ‘Falk’ Metzler’s previous posting titled In Defense of Articles 6 to 9 of the Unitary Patent Regulation and, in particular, to the discussion induced by it.

As can be learnt from the public discussion of the role of the Court of Justice of the European Union (CJEU) and of the European Court of Justice (ECJ) in the context of the planned Proposal for a Regulation of the Council and the European Parliament implementing enhanced cooperation in the area of the creation of unitary patent protection as well as with regard to the still unfinished Draft agreement on a Unified Patent Court there appears to exist – at least in some quarters – a sort of general discontent with the work of those judges presiding in Luxembourg over the entire body of EU law.

For example, our reader Derek Clapton (maybe a pseudonymous author identification?) puts his view on the CJEU in this brief summarising sentence:

To say that the ECJ “is the best functioning institution of the Union” is like saying that Amsterdam is the highest place in the Netherlands – possibly true, but an unimpressive boast nonetheless.

Well, I think it might be interesting to have some deeper insight into the factual basis of this damnation. Mr Clapton gives us a clue when he writes:

If, in answering questions such as how to determine the scope of protection of a patent claim, the ECJ introduces the same degree of uncertainty in patent law as it has in the case of trade mark law, the EU patent system will fail its users, which may lead to manufacturers deciding to locate new factories outside of the court’s jurisdiction. In such case, Spain may be well advised to remain outside of the proposed EU patent arrangements.

And another commenter Peter Lustig (maybe another pseudonymous identification?) argues:

Usually, one would expect renowned senior practitioners of his kind to join him and support his argumentation – there appear to be none so far. Also, the Article 6 to 9-issue is only one in a row of objections, some going to the very core of the project (e. g. the compatibility with the AETR case law of the CJEU) and still remaining unaddressed. With all due respect, but Professor Tilmann’s outstanding reputation should not be allowed to replace founded answers to legitimate questions.

And, even Dr. Jochen Pagenberg himself joins the line of comments by arguing, inter alia, as follows:

If one wants a really unattractive, inefficient, unpredictable and probably extremely expensive patent court system, then we will get it; one must only give the ECJ a chance to receive as many referrals in patent law as possible.

If one wants to see substantive patent law in Europe to be decided by judges without any solid knowledge and experience in this field, then one must involve the ECJ whenever possible.

Well, is this real? It is fair to say that as a humble patent and trade mark attorney I never shall deal with those EU judges in Luxembourg myself. But I have to carefully read important decisions, in particular in the field of trade mark law. And, yes, there are decisions of the Court which I find questionable but that also holds for me when studying decisions from German Courts. A well-known and a bit semi-ironic German proverb says that in court and on the high seas we all are in the hands of the Lord, indicating that awaiting a decision of a Court always bears a momentum of unpredictability. Are the high seas of the CJEU / ECJ excessive in this respect?

From Wikipedia we learn:

In Germany, the former President Roman Herzog warned that the ECJ was overstepping its powers, writing that “the ECJ deliberately and systematically ignores fundamental principles of the Western interpretation of law, that its decisions are based on sloppy argumentation, that it ignores the will of the legislator, or even turns it into its opposite, and invents legal principles serving as grounds for later judgements.” Herzog is particularly critical in its analysis of the Mangold Judgement, which overruled a German law that would discriminate in favour of older workers.

The President of the Constitutional Court of Belgium, Marc Bossuyt, said that both the European Court of Justice and the European Court of Human Rights were taking on more and more powers by extending their competences, creating a serious threat of a “government by judges”. He stated that “they fabricate rulings in important cases with severe financial consequences for governments without understanding the national rules because they are composed out of foreign judges.”

Some MEPs and industry spokesmen have criticised the ruling against the use of gender as factor in determining premiums for insurance products. British Conservative MEP Sajjad Karim remarked, “Once again we have seen how an activist European Court can over-interpret the treaty. The EU’s rules on sex discrimination specifically permit discrimination in insurance if there is data to back it up”.

None of these comments showing a quite hostile mood towards the CJEU / ECJ quoted above either appears to argue along circumscribable issues of the day-to-day work of the judges (imagine, theoretically, incidents like judges caught falling asleep during hearings) or puts forward specific problems of the law on the basis of which the Court operates (like EU Treaties and the Rules of Procedure) which at least theoretically could be open to political reforms. Similar to the lines drawn by Roman Herzog, Marc Bossuyt or Sajjad Karim of the Wikipedia quotation above it looks as if the overall gist of the case law produced by the Court goes against the grain especially for some of its EPLAW critics. Perhaps it might be correct to say that such critics would love to see CJEU / ECJ judges who show a more humble attitude towards national statutory and case law of the EU Member States.

At this point it is very clear for me that the current debate on the Articles 6 to 9 of the Draft of a Regulation of the Council and the European Parliament implementing enhanced co-operation in the area of the creation of unitary patent protection is by no means merely a dispute on particular matters of patent law. To the contrary, it is a very fundamental political question pars-pro-toto requesting an answer as to whether or not the competences of the EU should be extended or contained and perhaps even restrained.

The rise and the enormous success of the European Patent Office (EPO) in terms of quantity, i.e. the sheer number of patent applications filed, might blur the fact that at the very beginning of its history, the creation of the European Patent Convention (EPC) as a Treaty entirely separated from the Treaty of Rome (which, incidentially, was signed on the day 55 years ago) and the various successors thereof was conceived as some sort of interim arrangement. As early as 1959 Mr Hans von der Groeben had proposed to create a common system of patent law of the European Economic Community (EEC). In the early 1960s, the United Kingdom joined talks on that matter with the EC despite the fact that she not even was member of EEC but in view of her importance as venue for patent prosecution and litigation. Unfortunately, Charles de Gaulle decided in January 1963 to veto the accession of the United Kingdom to the European Communities including the EEC. During the following years, work on a common EEC patent system died down. In order to practise preferring the one bird in the hand which, according to the proverb, is worth two in the bush, attempts were made to create a limited Treaty outside of the EC legal framework just only for granting European Patents which would be open also for non-EC states of those days, including Switzerland and the United Kingdom. This treaty, concluded in Munich in 1973, is nothing else than the European Patent Convention we are enjoying (and broadly utilising) today. For more details of the history, see e.g. my earlier posting here.

I think it is correct to say that after creating the EPC in 1973 as sort of a makeshift solution for the pre-grant domain only, all further attempts undertaken since then to create a fully fledged European patent system also covering post-grant issues have utterly failed. Moreover, seen from today’s perspective, it even appears like a little miracle that two Diplomatic Conferences to revise the EPC, one in 1991 introducing an option for allowing supplementary protection certificates, the other one in 2000 bringing a general revision of the entire examination and granting process, were successfully completed without expelling any too-late-ratifiers in accordance with Article 172 EPC.

For readers of this blog who can read German texts and have access to a conventional legal library I would like to recommend reading two articles of Mr Otto Bossung, a former Member of one of the Boards of Appeal of the EPO and former Judge with the German Federal Patent Court:

• Rückführung des europäischen Patentrechts in die Europäische Union in GRUR Int. 1995, pages 923 to 935; and
• Unionspatent statt Gemeinschaftspatent – Entwicklung des europäischen Patents zu einem Patent der Europäischen Union in GRUR Int. 2002, pages 463 to 475.

Due to the lapse of time, the many particulars of the problems described in Mr Bossung’s articles are of historical interest only. However, they are worth reading even today as they provide a concise introduction into the background of the surface of the patent discussion of our days.

Up to now it is entirely open as to whether or not the pan-European patent system will stagnate with the pre-grant EPC as a makeshift solution or extend into something based on or closely related to the law of the European Union.

All those who, after having duly mooted all alternatives and consequences, conclude to support a closer integration of the European patent system into the legal framework of the EU will eventually have to accept some influence of the CJEU / ECJ even with regard to substantive patent law. Saying this it appears helpful to hint that under the given circumstances the practical impact of the CJEU / ECJ on substantive patent law will be quite small even if said disputed Articles 6 to 9 remain as part of the Regulation. What originally was anticipated and what theoretically remains looming at the (very distant) horizont is a full re-integration even of the pre-grant portions of substantive patent law into the domain of EU control.

This utopia does not necessarily mean that there is any necessity to dissolve the European Patent Organisation and to re-establish the European Patent Office as a body of EU law comparable to OHIM.

Before entry into talks on an enhanced co-operation aiming at the creation of a unitary patent the clear political goal of the EU Commission was to deal a full accession of the legal personality of the EU to the EPC. This sounds harmless but in practice this would have meant a factual take-over of any Diplomatic Conference for a future Revision of the EPC as well as of the Administrative Council of the Organisation.

This works as follows: Although the EU formally gets one vote like other Member States, no individual EPC Member State would have been allowed to vote differently than what is prescribed by the EU because of certain provisions in the EU Treaties require that no individual EU Member State shall take the liberty to divert from a common EU line previously agreed upon: The EU acting as a chief whip of the European Patent Organisation. If the EU internally finds a certain line of politics with regard to substantive patent law there would be no way – not even for EPC Member States which are not in the EU Club, which simply would be outvoted – to prevent the EU from pressing this line through against all sorts of political resistance.

This broader vision now seems to be gone for long years or even decades to come, but the open question still is if the power of the vision of an ever progressing European integration remains strong enough to overwhelm growing opposition against the day-to-day working of its bodies – including its Courts – fueled by all sorts of Euro-sceptic concerns. No more and no less is at stake when looking behind the seemingly technocratic question of whether or not some Articles of substantive patent law should be shifted from a Regulation forming part of the body of EU law to an Agreement (allegedly) not being part of the EU law.

If the public campaigning of various EPLAW members and other individuals against any – even only potential – inclusion of CJEU / ECJ into European substantive patent law should ever be taken up by Governments of EU Member States, another failure of EU patent politics might well be expected.

A very similar mechanism lead to the failure of the all-EU Community Patent in 2009, when the languages issue could not be resolved.

One of the most pressing practical problems of the European Union, especially after the extension to its full count of 27 member States as we have today, was to manage the truly Babylonic babble of 23 Official languages. After no political compromise was in reach to drastically cut down the number of Official languages on the level of the Official bodies of the EU, a pragmatic solution was found by simply throwing with taxpayer’s money at the problem: Most probably, the EU Directorate-General for Translation now is the world’s biggest translator’s Office ever seen in history. It is the institutionalised anti-body to the Tower of Babel.

However, this solution was not available for creating a pan-European patent system: Most probably there could be no political acceptance to simply let all granted patents be translated by the said EU Directorate-General at taxpayer’s expense. And, in view of the enormous costs of such patent translations, the industry balked, too. The remaining option for a solution was to cut down the number of languages. Very much like the result on the level of Official EU bodies, no workable consensus to simply abandon translations into most of the languages actually spoken throughout the EU was reached. Some more progressive countries joined a de-facto-English-only-club called London Agreement. However, finally two EU Member States (ES, IT) run, during a critical time window, by Governments glued to antiquated concepts like national pride eventually refused to accept that what is the status quo at the EPO, namely a strictly limited set of three Official languages (English, German, French).

Taking a sober perspective, I think it is proper to say that the EU currently is incapacitated to find any political solution to its own problem of combinatorically exploding translations of all Documents into all Official languages other than funnelling substantial amounts of money into some vast translation organisation. Unfortunately, the patent system simply is out of luck because of, on the one hand, there is no money for funding any kind of translate-all policy and, on the other hand, no political agreement to cut down the number of Official languages is possible.

The woes of the European patent system are the woes of the European Union in a nutshell.