Abstract
The Court of Justice of the European Union has frequently been criticized for its allegedly pro-integration and almost pro-active judicial policy regarding the construction and the application of primary and secondary Union law. This paper aims at showing that, at least with respect to the development of a uniform case law on harmonized national and unified Community industrial property, the Court has had and still has to fulfil its unique task of informing national courts and the industrial property community in general as to the direction, in which European Union law is to evolve in the interest of the Union’s legal unity and of its independent industrial property policy. To this effect, a comparison is made between, on the one hand, the system of decentralized judicial review as it has been established with respect to both harmonized national copyright, trademark and design law, and unitary Community trademarks, designs and plant varieties, with, on the other hand, the recent proposals made for the conclusion of a “European Patent Litigation Agreement (EPLA)” and for the creation by international agreement of a highly centralized “European and European Union Patent Court (EEUPC)”. Both concern the settlement of litigation over infringement and validity of patents, the former relating only to national patents resulting from the bundle of patents granted by the European Patent Office at uniform conditions, the latter to both these patents and the unitary European Union patent (formerly the Community patent) as expected to be introduced by a Community regulation.
More particularly, the paper critically assesses the relationship between the proposed inter-national EEUPC and the European Court of Justice. The draft agreement as currently under consideration by the Council of the European Union pretends at creating a workable link between the two different courts with a view to ensuring primacy of the Union’s law and uniformity of the application of its secondary law on patents. However, in reality the proposal tends to both severely reduce the role, which the European Court of Justice ought to play in the Union’s legal order, and to restrict the sovereign development of a forward looking, independent patent policy by the Union. This is so because, on the one hand, as a specialised and centralised high court, the EEUPC will by itself and by its very vocation ensure the development of a patent-specific “expert” case law and of its uniformity, and, on the other, because the inclusion of both the European and the European Union patent into one litigation agreement containing a full set of rules on the infringement and on the revocation of patents will exclude any unilaterally defined patent policy. As a result, patent law is vowed to develop in splendid isolation, and without the benefit of the guidance, which the European Court of Justice, it being a supreme court of general jurisdiction, has given and is called upon to give in other areas of the protection of industrial and intellectual property in the Union.
