Bonum Certa Men Certa

FFII: In PL Holdings, European Court of Justice Confirms EU Law Cannot be Outsourced to International Courts Like Unified Patent Court (UPC)

By Benjamin HENRION, originally posted February 15, 2022

CJEU

Brussels, 17th Feb 2022 — The European Court of Justice has confirmed that EU law cannot be outsourced to international courts in its “PL Holdings sarl Vs Poland” decision. It is problematic for the architecture of the Unified Patent Court (UPC), which is an international court outside of the judicial system of the European Union, despite the claims of its supporters.



The European Court of Justice (CJEU) has recalled in PL Holdings that Member States cannot remove disputes from the judicial system of the EU which deal with EU law:



Lastly, it follows both from the judgment in Achmea, and from the principles of the primacy of EU law and of sincere cooperation, not only that the Member States cannot undertake to remove from the judicial system of the European Union disputes which may concern the application and interpretation of EU law […].

— Court of Justice of the European Union, Press Release No 190/21, Luxembourg, 26 October 2021, Judgment in Case C-109/20, PL Holdings, https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-10/cp210190en.pdf


Since EU law covering patents is the Biotech directive and the Enforcement directive (IPRED), the interpretation of EU law is removed from the judicial system of the European Union, which is composed of the CJEU and the National Courts.



The PL Holdings decision follow the same line of thought as the Achmea decision, where the European Court of Justice dissolved intra-EU investment courts (ISDS). In its Achmea decision (2018), the CJEU recalled the same functional link principle with the National Courts, as in Miles (2011):



However, the arbitral tribunal at issue in the main proceedings is not such a court common to a number of Member States, comparable to the Benelux Court of Justice. Whereas the Benelux Court has the task of ensuring that the legal rules common to the three Benelux States are applied uniformly, and the procedure before it is a step in the proceedings before the national courts leading to definitive interpretations of common Benelux legal rules, the arbitral tribunal at issue in the main proceedings does not have any such links with the judicial systems of the Member States (see, to that effect, judgment of 14 June 2011, Miles and Others, C‑196/09, EU:C:2011:388, paragraph 41).

— CJEU’s Case Case C-284/16, Achmea, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62016CJ0284&qid=1639573183575


Supporters of the UPC keep claiming it will be a Court Common to the Member States:



The Unified Patent Court (UPC) will be a court common to the Contracting Member States and thus part of their judicial system.

— Unified Patent Court website, About page, https://www.unified-patent-court.org/about


If the Unified Patent Court is really part of their judicial system, why does the staff of the court need diplomatic immunity via the Protocol on Privileges and Immunities (PPI) of the Unified Patent Court?



The European Court of Justice has allowed the Benelux Court of Justice to be part of the judicial system of the European Union, because it has a dialogue with National Courts, via a system of prejudicial questions. The UPC does not have any dialogue with the National Courts, it simply replaces them.



The European Court of Justice is very much attached to the concept of Autonomy of EU law, which is in danger each time an international court outside of the judicial system of the European Union is allowed to interpret EU law.



Member States which are no signatory of the UPC (because it is a super too-expensive court for SMEs) like Poland, Hungary, Spain or Czech Republic should use Art259 TFEU to ask the question to the European Court of Justice whether this construction is compatible with the architecture of the European Union:



A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.

— Article 259 TFEU, EUR-Lex https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12016E259




Recent Techrights' Posts

Microsoft said “GitHub and its leadership team will continue its mission as part of Microsoft’s CoreAI organisation.” But it's just an empty shell created earlier this year.
In short, it's not too clear what Microsoft has just done except dumping GitHub - i.e. mostly a Web site that loses a ton of money (it always lost money) - into some mysterious new bucket
IBM Layoffs in MCC, or Marketing, Communications and Corporate Social Responsibility (CSR)
IBM and Microsoft inflate their share price by circular financing
The Register MS gets Lazy, Uses Slop
Unlike 3-D renderings or "Classic" CG, slop images aren't quite original and definitely not fair use
 
Gemini Links 19/08/2025: Niche Spaces and "AI Pasta Sauce"
Links for the day
Links 19/08/2025: "NASA Is Giving Up on Climate Change Science" and "Earth's Continents Are Drying Out at an Unprecedented Rate"
Links for the day
Phil Wyett evidence & Debian Zizian plagiarism, modern slavery tendencies
Reprinted with permission from Daniel Pocock
In Many Countries People Move Away From Vista 11
Vista 11 has been available for download for 4 years already, but adoption has been poor
Desktops/Laptops Fall to All-Time Lows in the UK, So Why Does British Media Quote a Famous Criminal on "End of the Smartphone Era"?
mobile usage (for Web access) has never been higher, based on an Irish surveyor, statCounter
The Groklaw Web Site Has Been Hijacked by Scammers
Groklaw.net isn't a safe site to access at this time
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 18, 2025
IRC logs for Monday, August 18, 2025
Online Safety Act Does Not Tackle the Worst (and Biggest) Culprits
if our governments are serious about tackling online harms, then they need to look closely at GAFAM and social control media giants
Chat Control (1 and 2) in the European Union Sends the Wrong Message
This is an EU law
Slopwatch: Google News and Serial Sloppers (Fake Articles About "Linux")
Calling out the culprits
Gemini Links 19/08/2025: Digital Legacy and Chat Control
Links for the day
English Law Misused by Americans and Irishmen Against Brits is Unfair
There's always a way to improve existing laws
Overly Maximalist, Expensive, Localised Patent Law is Dooming Western Companies, Argue 3-D Printing Champions
We've long warned (over 7 years already!) that China's approach to patents will impress WIPO by gaming the totals but will doom the West
Links 18/08/2025: "Microsoft Store" Gets Increasingly Hostile, "Cracking Abandonware DRM"
Links for the day
Gemini Links 18/08/2025: Summer "Gone" and Web Reposts in Gemini
Links for the day
Microsoft's Windows in Gabon: Still Moving Down
What is this Unknown? Who knows...
Links 18/08/2025: LLM Reputation Damaged, Australia Catches Google Foul Play
Links for the day
Geeks Like GNU/Linux
The technical community seems to be consolidating and rallying around GNU/Linux
GNU/Linux is 486 in Ireland
4.86% that is
End of Reliable Media
it makes the world a worse place, it renders the Web a misinformation machine
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 17, 2025
IRC logs for Sunday, August 17, 2025
GitHub Won't Last Much Longer
Many things at Microsoft are going to go the way of the Skype (or "dodo"). GitHub will be among those.
We've Never Used Large Language Model (LLM)
we just never used an LLM
"Secure Boot" is a Security Problem, Not a Solution
These people don't try to improve security but to undermine security
Gemini Links 18/08/2025: Retro and Endless Escape from the WWW
Links for the day
Working Whilst Away From Home
Decades ago being away meant all sorts of problems associated with workflows and connectivity
The Next Version of Windows Will Always be the Best (for Microsoft)
It's worse and slower over time
"End of the Smartphone Era" According to Jeffrey Epstein's Key Enabler
They call it "sour grapes"
Links 17/08/2025: Strike Downs Air Canada, Postmortems of Putin's Red Carpet Summit
Links for the day
Links 17/08/2025: Slow Tools and Enshittification of YouTube
Links for the day
Don't Talk to Bullies
This serious matter is still being examined by British authorities
Links 17/08/2025: "The Performance of Power" and "My Undesirable Friends"
Links for the day
Growing Our Reach
Our goal was never "hits"
The Russian Vision of Technology
Russia's surveillance is very extensive
Sooner or Later Almost Everyone Will Know "AI" is Just a Go-To, Misused, Misapplied, and Grossly Overused Term of Liars and Con Jobs Who Ride a Ponzi Scheme
At the expense of people gullible enough to "invest" in this or take salaries/bonuses in the form of "stock" (tied to a Ponzi scheme)
The Register MS Has Begun Using Slop Images
It's not clear when it started; but it's definitely getting worse [...] Worst of all are 'articles' about slop that are themselves slop
Reddit Funded by Microsoft
Reddit is merely a filter and we knows who controls that filter (using money)
When It Comes to Technology, Mozilla and Firefox Are Illiberal
Last month in Planet Debian we saw one more person explaining to everyone how to "turn off" DRM in Firefox and hide the pop-up/s
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 16, 2025
IRC logs for Saturday, August 16, 2025
The Open Source Initiative Has Many Scandals, We'll Try to Summarise Them All
Open Source Initiative (OSI) hates facts
Open Source Initiative (OSI), Wikipedia, Molly De Blanc, and Censorship/Reputation Laundering
OSI is like SPLC. The old name remains, the mission changed
Gemini Links 17/08/2025: Misunderstanding "Geminiverse" and Let's Encrypt
Links for the day
Links 17/08/2025: Breaches, Layoffs, and Scams
Links for the day