Patent pending

The ECJ's jurisdiction to give opinions has often been a useful source of statements of general principle concerning the constitutional order of the European Union. So it was in Opinion 1/09 (Full Court, 8 March 2011), in which the ECJ has advised that proposals for the creation of an international patents court to superintend a revised European patents system would be incompatible with the treaties.

The European Patents Convention of 1973 establishes a European Patent Office. The patents issued take effect as a bundle of patents, each governed by the law of a particular contracting state. It was proposed to modify this system by making the European Union party to the convention, and providing for the issue of a true 'European patent' '“ not just a bundle of rights, but a source of rights in itself, in both the EU and in other (non-EU) contracting states.

Part of the proposal was to create a patent court; an international court which would have exclusive jurisdiction over various issues concerning the European patent.

That court was to be required to respect Community law, and to be permitted to refer questions concerning the interpretation or validity of EU acts to the ECJ.

The question before the ECJ in Opinion 1/09 was whether this proposed court would be compatible with the treaties. The ECJ thought that it was not. Its central concern was that the patent court '“ which was not a court or tribunal of the member states, but the creation of an international agreement which included non-member states '“ would deprive national courts of their ability to ensure that EU law is uniformly applied.

The opinion contains a very strong statement of the role of national courts in the union's legal order. They, with the ECJ, are the 'guardians of that legal order'; they fulfil, in conjunction with the ECJ, a 'duty entrusted to them both of ensuring that in the interpretation and application of the treaties the law is observed'.

Delegating that duty to the patent court and depriving national courts of their ordinary powers is therefore incompatible with the union's legal order. The fact that the patent court was to be under an obligation to apply EU law, and have a power to refer questions to the ECJ, did not seem to make it better, but worse. It emphasised the way in which the patent court (a sort of cuckoo, as the ECJ saw it, in the EU judicial nest) was to take on the role normally fulfilled by national courts.

Had national courts been as jealous of their sovereignty '“ of their traditional place as guardians of the constitutional order in the member states '“ then the EU project might never have got off the ground. The gradual creation of the EU as something more than an international organisation depended, in a sense, on precisely the sort of cuckoo-like maneouvres that the opinion seeks to avoid. And the ECJ's project, during the 1970s and 1980s, to establish the supremacy and autonomy of the EU legal order depended on a pragmatic acceptance by most national courts that it was a system with which they could reach a constitutional accommodation.

Going too far

But how sound, really, is the ECJ's purist approach? If it is a fundamental principle of EU law that every decision about the application or validity of EU law must be taken by an EU court, what consequences might that have? Does it mean that EU law issuescannot be the subject of arbitration? Or that a jurisdiction agreement to confer exclusive jurisdiction upon a non-EU court cannot be enforced? What, as one commentator has pertinently asked, about bilateral investment treaties?

The trouble with the ECJ's principle, if read broadly, is that it elevates the uniform enforcement of EU law by national courts to constitutional significance, regardless of the importance of the point at issue. That seems to go too far. There might be some basic principles '“ some fundamental rights, for instance '“ which raise such concerns that one cannot contemplate an ouster of jurisdiction. But to make the uniform application of every aspect of EU law by national courts a matter of constitutional seems extravagant.

And what, in the end, is the purpose of this purist approach? Is an international patents court really a threat to liberty? There is surely some attraction to having specialist bodies which can transcend the jurisdictional squabbles between national courts which can bedevil transnational litigation.

The opinion, consistently with its preference for abstract general statements of principle over pragmatic engagement with the realities of what was proposed, shows no interest in such matters. Could the ECJ not have taken a pragmatic view, accepting that in the narrow field in which the patent court will operate the proposed agreement offered sufficient practical safeguards to make its theoretical inconsistency with high constitutional principle tolerable?

One might hope that the opinion should be read more narrowly. The ECJ could only advise on the proposal that was before it; it could not revise it. Perhaps it would be possible to arrive at a scheme which conferred a large measure of exclusive jurisdiction on the patents court, while reserving ultimate control over points of fundamental importance to a Community court. One must, at any rate, hope that the ECJ's apparently unqualified statements of constitutional principle are not taken too seriously.

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