Another blow to a common patent system: incompatibility of Commission proposal with the provisions of the European Treaties confirmed.

On 8 March 2011, the Court of Justice of the European Union (CJEU) published its opinion that the envisaged agreement creating a European and Community Patent Court (EEUPC) is not compatible with the provisions of European Union law.

As the main reason for its opinion the CJEU held that the envisaged agreement would confer essential powers in relation to the interpretation and application of European Union law to the EEUPC and thereby deprive the national courts of the member states of their respective powers, including their power to refer respective questions to the CJEU for a preliminary ruling. Furthermore, the CJEU states that - unlike decisions of national courts of the member states - if a decision of the EEUPC were to be in breach of European Union law, it could not be the subject of European infringement proceedings nor could it give rise to any financial liability on the part of one or more Member States.

In view of this reasoning arguing also with the essential character of the powers conferred on institutions of the European Union and on the Member States, it is questionable whether the envisaged agreement may be "repaired" by specific or even structural amendments. A way out - but a completely different solution - could be a court system similar to the Community's trademark court system in which the jurisdiction is conferred to the national courts and the CJEU.

See here for the Opinion Of Court of Justice of the European Union and for the related press release.