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The Legal Service which advises the European Parliament (EP) on legal issues and acts as its representative in court, found the Patent Litigation Agreement (EPLA) as illegal being in direct contradictions with the European law and several EU treaties.
The very controversial EPLA, if adopted, would bind the signatory states to a common legal system for patent disputes, including procedural rules and a European Patent Court that would supersede national courts.
The critics of the proposal have expressed concern that such a system would make the patent awarding more expensive and less accountable.
In October 2006, MEPs voted to postpone any decision on approving EPLA, and called for "significant improvements" to the text. EP has also asked from its Legal Service to give its advice on the possible overlap between the EPLA and the acquis communautaire.
The EP Legal Service concluded that EPLA provisions are in direct conflict with the EC Treaty which says that: "member states undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein," meaning that disputes between EU member states on matters of EU law should be resolved exclusively by the European Court of Justice.
In contradiction to this provision, Article 98 of the proposed EPLA says: "any dispute between Contracting States concerning the interpretation or application of this Agreement which is not settled by negotiation shall be submitted, at the request of one of the States concerned, to the Administrative Committee, which shall endeavour to bring about agreements between the states concerned"
The Legal Service opinion says that member states are not allowed to make an agreement between themselves concerning issues covered by EU laws and treaties, especially when such agreements could affect relations with countries outside the EU. "Where common rules have been adopted, the member states of the European Community no longer have the right, acting individually or even collectively, to undertake obligations with non-member countries which affect those rules".
According to the Legal Service, the EPLA is also in contradiction with IPRED Directive (Directive 2004/48/EC) already dealing with intellectual property. "Not only would EPLA govern matters already dealt with by this Directive, but there are also contradictions between the two instruments on a number of matters".
The conclusion of the EP Legal Service is that EPLA is not valid: "The Community's competence is exclusive for the matters governed by EPLA and Member States therefore are not entitled on their own to conclude that Agreement".
European Parliament blocks patent agreement (15.02.2007)
http://www.out-law.com/page-7771
European Parliament's Legal Service Says EPLA Is Illegal (21.02.07)
http://www.tax-news.com/asp/story/story_open.asp?storyname=26443
Rough Weather Ahead For EPLA (11.02.2007)
http://www.ipjur.com/2007/02/rough-weather-ahead-for-epla.php3
EDRI-gram: The European Parliament ready to vote on EPLA (11.10.2006)
http://www.edri.org/edrigram/number4.19/epla
EDRI-gram: ENDitorial - Regulating the Patent Industry (25.10.2006)
http://www.edri.org/edrigram/number4.20/patents