On 8 March 2011, the Court of Justice of the European Union ('ECJ') gave its Opinion regarding the compatibility with the EU Treaties of a draft agreement published by the EU Council of Ministers in April 2009. The agreement would create a single EU-wide patent court with jurisdiction over both European patents, as currently granted by the European Patent Office ('EPO') under the European Patent Convention ('EPC'), and future EU patents.
The ECJ was asked to give its opinion on the legality of the draft agreement under Article 300(6) EC (now Article 218(11) TFEU) which allows the EU institutions to seek the opinion of the ECJ about the compatibility of an international agreement with EU law before it is concluded.
The ECJ ruled against the compatibility of the draft agreement, on the basis that by conferring on the future patent court, which is outside the institutional and judicial framework of the EU, the exclusive jurisdiction to hear a significant number of actions brought by individuals in the field of the EU patent and to interpret and apply EU law in that field, the agreement will alter the essential character of the powers which the Treaties confer on the ECJ and on national courts.
However, despite the many legal issues raised in the proceedings, the ECJ left a number of questions unanswered, which may necessitate further Opinions in the future.
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