Enhanced Cooperation in the area of IP Flashcards
General provisions on enhanced cooperation
- must comply with EU law - should not undermine the internal market
- must respect the competences of states that do not participate in enhanced cooperation
- should be open to all states, subject to compliance with Acts, framework and conditions to join
- can only be established in areas of non- exclusive competence by the EU
Provisions of Enhanced Cooperation mentioned in TEU and TFEU
Article 20 TEU
Article 326-334 TFEU
Adoption of the decision authorising enhanced cooperation requires
A qualified majority of Member States within the Council and the consent of the European Parliament.
The adoption of the new rules then requires unanimity by the Member States participating in enhanced cooperation and the consultation of EP.
Other Member States are free to join the enhanced cooperation at any time
European Unitary Patent
A specialised parent court will allow cases to be heard before judges with the highest level of legal and technical expertise in patents.
A unified court will also mean that parties do not have to litigate in parallel in different countries incurring high costs.
26 Member States participating in the Unitary Patent
Austria, Belgium, Bulgaria, the Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Greece, Germany, Hungary, Italy, Ireland, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Sweden, the United Kingdom
Basis of European Unitary Patent are the following legal acts
Regulation (EU) No 1256/2012 of the EP and Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of Unitary Parent protection
Council Regulation No 1260:2013 implementing enhanced cooperation in the area of the creation of Unitary Patent protection
Agreement on the Unified Patent Court
- not within the scope of EU
* signed on 19 February 2014 by 24 Member States (Poland and Bulgaria excluded)
UPC’s entry into force
Takes place after 13 states (including Germany, France and the UK) ratify Patent Court agreement
Currently 16 countries have ratified agreement but there are problems: constitutional complaints in Germany and Brexit
UPC’s appellate court would be based in
Luxembourg
Opinion 1/09 - doubts on UPC and the alteration of the character of the powers that treaties bestow
The creation of the unified patent system would be incompatible with EU law due to conferring and exclusive power on an international court which is outside the institutional and judicial framework of the EU to hear a significant number of actions brought by individuals and to apply law in that field.
Crucial role of national courts would be deprived of powers of interpretation and application of EU law.
Court dissatisfied over no powers to reply.
