Today the Court of Justice of the EU delivered its much awaited opinion about the compatibility of the envisaged European and EU patent court with the EU treaties, as requested by the Council that had prepared the international agreement that would set this up. This envisaged court was one of the building blocks to form part of a single (or singlish) EU patent and patent dispute resolution mechanism, although the patent court is formally not connected to the efforts of a group of EU member states to move towards a unitary EU patent.

The negative opinion of the joint Advocates General was a sign that the EU court might not issue a favorite opinion on the Patent Court’s intended functioning. The Court indeed shares the main objections made by the AGs that the international agreement in the way it was set up would lead to the member states giving away competence to the Patent Court that could also include interpretation of EU law. However, the agreement did not ensure that questions of European law in cases heard by the  Patent Court could or would be referred to the European court. Normally where an infringement of European Union law is committed by a national court, a case may be brought before the Court to obtain a declaration that the Member State concerned has failed to fulfil its obligations. However, if a decision of the European and Community Patent Court were to be in breach of European Union law it could not be the subject of infringement proceedings nor could it give rise to any financial liability on the part of one or more Member States.

In those circumstances, the Court considers that the envisaged agreement, by conferring on an international court which is outside the institutional and judicial framework of the European Union an exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the Community patent and to interpret and apply European Union law in that field, would deprive courts of Member States of their powers in relation to the interpretation and application of European Union law. The agreement would also affect the powers of the Court to reply, by preliminary ruling, to questions referred by those national courts. Accordingly, the agreement would alter the essential character of the powers conferred on the institutions of the European Union and on the Member States which are indispensable to the preservation of the very nature of European Union law. Consequently, the Court concludes that the envisaged agreement creating a European and Community Patent Court is not compatible with the provisions of European Union law.