EPLA found illegal by the EP Legal Service

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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