Original at FFII

The Unified Patent Court (UPC) is a court outside of the design of the European Union, and won’t survive a legal challenge at the European Court of Justice (CJEU), says Pr Thomas Jaeger, legal researcher at the University of Vienna, who has analyzed in a paper “Delayed Again? The Benelux Alternative to the UPC” the jurisprudence of the CJEU for the last 10 years regarding international courts that have to interpret EU law.

Over the last 10 years, The European Court of Justice of the European Union (CJEU) has defined a clear jurisprudence on what consists a “common court” between the Member States, via a series of decisions that all follow the same logic: international courts that have to interpret EU law have to have functional links with the National Courts of the Member States, which the UPC does not have.

Pr Jaeger says in his paper:

“the narrative was invented that the UPC is a court common to the Member States. It is not, of course, because the functioning and jurisdiction of the court remained the same as envisaged for the EEUPC.”

He cites the CJEU’s Miles judgment (2011), which explains why the Benelux court is acceptable, and other models like the UPCA are not (lack of functional links with the national Courts of the Member States):

“‘It is true that the Court of Justice has held, in … Dior, that … a court common to a number of Member States, such as the Benelux Court of Justice, [is] able to submit questions to the Court of Justice, in the same way as courts or tribunals of any of those Member States. … However, the Complaints Board [at hand] is not such a court common to … Member States[.] Whereas the Benelux Court … procedure … is a step in the proceedings before the national courts leading to definitive interpretations of common Benelux legal rules …, the Complaints Board does not have any such links with the judicial systems of the Member States. … Moreover, although the Complaints Board was created by all the Member States and by the Union, the fact remains that it is a body of an international organisation which, despite the functional links which it has with the Union, remains formally distinct from it and from those Member States.”

— CJEU’s Case C-196/09, Paul Miles and Others v European Schools, 2011, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62009CJ0196&from=EN

In its Achmea decision (2018) to cancel controversial intra-EU ISDS investment courts, the CJEU recalled the same principle 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

In a recent interview on Kluwer Patent Blog, Pr Jaeger says the Court design might be challenged by a complaint in front of national courts, of whom the competence was stolen by the Unified Patent Court:

“Will the UPC’s legality be tested immediately after its launch, you think? “I have heard from a number of sides that such interest is there, especially since the hurdles for a challenge are low: Any national court whose jurisdiction is removed because of the UPC could put the question of EU law compatibility of that removal of jurisdiction (i.e. of legality of the UPCA) before the CJEU by way of a preliminary ruling. All it takes is a litigant who approaches that court, which would in turn need to ascertain the preliminary question of its continued jurisdiction.”

— Kluwer Patent Blog: ‘Unitary Patent system is an arbitrary and ailing hybrid monster mix’ , Interview of Pr Jaeger http://patentblog.kluweriplaw.com/2021/12/09/unitary-patent-system-is-an-arbitrary-and-ailing-hybrid-monster-mix/

Links

• Thomas Jaeger, Delayed Again? The Benelux Alternative to the UPC, GRUR International, Volume 70, Issue 12, December 2021, Pages 1133–1144, https://doi.org/10.1093/grurint/ikab110 , also available at http://techrights.org/wp-content/uploads/2021/12/the-benelux-alternative-to-the-upc.pdf
• Point 12 of the Max Planck’s paper “The Unitary Patent Package: Twelve Reasons for Concern” (2012): https://www.ip.mpg.de/fileadmin/ipmpg/content/stellungnahmen/mpi-ip_twelve-reasons_2012-10-17_01.pdf : “Persisting incompatibility of the Unified Patent Court with EU law. The UPCt Agreement does not adequately address the concerns voiced by the ECJ in its Opinion 1/09 in terms of the EU law compatibility of the preceding court model. Although the UPCt is based on the example of the Benelux Court of Justice, its features significantly differ. Suffice it to mention that, unlike that of the Benelux Court, the UPCt’s jurisdiction is not limited to preliminary references and that the UPCt is fully detached from the national legal systems (in fact replacing them).”
• Techrights: Prof. Thomas Jaeger in GRUR: Unified Patent Court (UPC) “Incompatible With EU Law“ http://techrights.org/2021/12/01/thomas-jaeger-in-grur/
• Kluwer Patent Blog: ‘Unitary Patent system is an arbitrary and ailing hybrid monster mix’ http://patentblog.kluweriplaw.com/2021/12/09/unitary-patent-system-is-an-arbitrary-and-ailing-hybrid-monster-mix/

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