Will EU Unified Patent Court Decision Depend On Emergency Of EU Euro Crisis?

Yesterday I had posted an article on the failure on the 3169th meeting of the Council of the EU in Competitiveness configuration (Internal Market, Industry, Research and Space) which was held in Brussels. As indicated, the final result was that the decision on the seat of the central division of the EU Unified Patent Court is said to be taken by the European Council at its meeting on June 28 and 29, 2012.

Well, the European Council should not be mixed up with the Council of the European Union.

The European Council consists of the Heads of State or Heads of Government of the Member States, together with its President and the President of the Commission. It defines the general political direction and priorities of the European Union. With the entry into force of the Treaty of Lisbon on 1 December 2009, it became an institution. Its President is Mr Herman Van Rompuy.

To the contrary, the Council of the European Union is the EU institution where the Member States’ government representatives sit, i.e. the ministers of each Member State with responsibility for a given area. The composition and frequency of Council meetings vary depending on the issues dealt with.

I must confess that due to some sloppiness in writing and in sake of brevity I frequently have labelled the Council of the European Union as “EU Council”, even in this blog. This is confusing. I should avoid this language in future.

So, after this preliminary digression it is now clear what will happen on June 28 and 29, 2012:

Ms Merkel and all of her colleagues on EU level are poised to undertake a (final?) approach to find a political solution to the question of the seat of the central division of the EU Unified Patent Court. Maybe that there is even a slim chance is that Spain and Italy (which now have changed their respective government since the failure of the EU Community Patent approach in 2010) jump on the bandwagon.

The German broadsheet Handelsblatt today runs a story indicating that on the 3169th meeting of the Council of the EU held yesterday the German delegation kept on fiercely fighting for Munich as seat for the central division but on the level of ministers no agreement could be reached.

In view of this situation it appears to be quite safe to say that the EU Unified Patent Court and, of course, the linterlinked enhanced co-operation for creating a EU Unitary Patent, will not only be dead with regard to the duration of current Danish EU Presidency (ending on July 01, 2012 anyway)  but probably also for a much longer time should the EU Euro crisis rise to higher levels such that the Heads of State / Heads of Government to be assembled in Brussels later this month need to be busy with firefighting on a full-time basis, having no spare time to resolve Intellectual Property issues.

In the Handelsblatt story, unidentified EU Diplomats are cited to have said that a solution will probably be found as part of a “package”. This means  that the country receiving the seat will be required to give in concerning some other compromise elsewhere. Or, the other way round: A country that is very generous elsewhere might expect to receive the seat of the central division on the basis of reciprocation. Hence, if the Euro crisis does not hamper the entire summit, Ms Merkel might have a chance to bring home the central division as some sort of a consolation gift if she gives in with regard to some of the pressing issues in the context of the current EU (Euro) crisis.

Furthermore, Handelsblatt explicitly writes that especially the Italian Government might be ready to join the club in a last minute move but was unable to do so yesterday because of they were unhappy with the state of the discussion on the seat issue. I can only hope that they do not carry on with nurturing pipe dreams of bringing the central division to Milan.

Obviously nobody on EU level is seriously negotiating any technical details of the patent package (Unitary Patent including translation agreement plus Unified Patent Court) any more. As said before, patent experts have been kicked  out unceremoniously. If (and only if) an agreement on the seat issue is reached, the entire matter probably will be pressed on an as-is basis through the institutions anyway.

[UPDATE 2012-06-01] See also this report by Sophie Mosca on europolitics.info:

“Italy proposed, in February, its candidacy for the seat of the central division of the unitary patent court system as a way of breaking the stalemate. Although its proposal was initially rejected because it was presented after the deadline of 4 December 2011 for the submission of candidacies, it has come back to the fore. “The Netherlands did the same recently, stressing that it did not wish to make the situation worse, but to propose The Hague as a candidate in order to calm the debate,” an informed source told Europolitics.”

This means that the Italian Government indeed wants to cash in sort of a dividend on dropping Mr Berlusconi’s opt-out refusal to join the EU Community patent project in 2010. I am not amused.