Brussels, 10 Jul 2003
Delegations will find attached a plan for the organisation of work at the meeting on 14 July 2003.
I. At the unofficial request of a number of delegations, the Presidency has decided to bring to the attention of the Working Party on the Court of Justice the proposal for a Regulation on the Community patent which is currently being examined by the Working Party on Intellectual Property (Patents), so that certain jurisdictional matters raised in the proposal can be discussed.
The jurisdictional system for the Community patent will be covered by various acts: in addition to the Regulation itself, there will be a decision (based on Article 229a TEC) to transfer jurisdiction for a large proportion of disputes to the Court of Justice, a decision (based on Article 225a TEC) to set up a special judicial panel to be called the Community Patent Court (CPC), a decision (based on Article 245 TEC) amending the Statute of the Court of Justice, and Rules of Procedure for the CPC.
While the decisions to be taken by the Council under Articles 225a, 229a and 245, and its approval of the Rules of Procedure, will be prepared by the Working Party on the Court of Justice, the proposal for Regulation on the Community patent will be discussed almost exclusively in the Working Party on Intellectual Property (Patents). It would therefore be desirable if the Working Party on the Court to Justice could also make a technical examination of the Articles in the proposal for a Regulation which relate more directly to the jurisdictional aspects of the future system. This is to ensure that the decisions taken in connection with the Regulation do not subsequently turn out to be incompatible with any taken in the course of discussions on the other acts, and more generally with the principles and mechanisms whereby the Community jurisdictional system operates.
II. To assist delegations in preparing for the meeting of the Working Party on the Court of Justice, the Presidency proposes to structure discussions around the following points:
1. Relationship between some of the jurisdictional arrangements proposed in the consolidated text under discussion in the Working Party on Intellectual Property (Patents) ( 10728/03 of 23 June 2003) and the general rules of the Community jurisdictional system.
2. Relationship between the various acts and rules which will govern the jurisdictional system for the Community patent and question of how the various points contained in the political approach approved by the Competitiveness Council on 3 March 2003 are to be reflected in them.
3. Drafting aspects of the proposal for a Regulation.
III. In relation to these three points, the Presidency suggests that delegations give particular thought to the following questions:
(a) Allocation to the CPC of jurisdiction over matters to do with licences of right and compulsory licences:
- Do delegations consider the powers provided for in Articles 20, 21 and 22 of the consolidated text?
- If not, do they consider the conferring of non-judicial powers to be compatible with the Treaty, and in particular Article 225a?
- In any case, what are the consequences of conferring such powers on the CPC with regard to review of the corresponding decisions taken by the CPC?
- Article 21(6) contains a clause stipulating that the procedures to be followed by the CPC within the framework of its jurisdiction over compulsory licences are to be laid down by the Commission under the committee procedure. Do delegations consider this clause to be compatible with the Treaty?
(b) Commission's capacity to act before the CPC (Article 40)
(c) Relationship between the CPC and non-Union bodies:
- Do delegations consider the stipulation that the CPC must stay proceedings if a case is pending before an Opposition Division or a Board of Appeal of the European Patent Office (Article 31(3)) to be compatible with the Treaty?
- If so, should this stipulation appear in the Regulation establishing the Community patent or in the Statute of the Court of Justice, or in one of the other acts which will govern the operation of the jurisdictional system for the Community patent?
(d) To what extent and by means of what legal instruments do delegations think it is possible to adapt the present Community judicial system to the case of Community patent disputes? In particular, should any adjustments with regard to capacity to act and to intervene before Community courts be included in the Regulation on the Community patent or in one of the acts specifically intended to establish the jurisdictional system for the Community patent? If it is to be one of the latter, which should it be (decision under Article 229a, decision setting up the CPC, Statute)?
(e) Which elements of the future jurisdictional system for the Community patent should be included in the decision to be taken under Article 229a and which in the Regulation and in the other acts to be adopted? For example, should the deadline of 2010 by which the CPC must be operational be stipulated in the Regulation or in the Decision taken under Article 229?
(f) From the drafting point of view, do delegations consider it correct that the points relating to the jurisdictional system contained in the common political approach of 3 March 2003 should be included in full in the preamble to the Regulation on the Community patent? If so, to what extent is this possible? Do delegations have suggestions concerning drafting changes to be made to the preamble?
IV. The Presidency intends to seek the opinions of the delegations and of the representatives of the Court of Justice, the Court of First Instance and the Commission on the questions set out above and on any other matter raised at the forthcoming meeting on 14 July. The Presidency will subsequently report on the outcome of that meeting to the Working Party on Intellectual Property (Patents).