The European Unitary Patent System: On the 'Unconstitutional' Misuse of Conflict-of-Law Rules in: Zwischenbilanz – Festschrift für Dagmar Coester-Waltjen, Gieseking-Verlag, Bielefeld 2015, 361 - 374.
On 18 November 2014, Advocate General Bot delivered his opinion on the Spanish action against Regulation No. 1257/2012 on Unitary Patent Protection. Among other things, Spain claims that the Regulation is not capable of guaranteeing unitary patent protection as required by Article 118(1) TFEU since, pursuant to the conflict-of-law rule contained in Article 5(3), it leaves this question to the national law of the participating Member States. AG Bot rejected this claim by arguing that, under the EU principle of sincere cooperation, the participating Member States are under an obligation to ratify the Unified Patent Court (UPC) Agreement, which contains uniform rules on the scope of such patents. The legislative history shows that most of the substantive patent law provisions that were included in the Commission Proposal for the UPP Regulation were ultimately transferred to the UPC Agreement as part of a political compromise that attempts to exclude the jurisdiction of the Court of Justice of the EU (CJEU) for these rules. Hence, following the reasoning of AG Bot, the conflict-of-law rule of Article 5(3) is not designed to solve a conflict of laws, but only aims to insulate the UPC Agreement against claims that its uniform substantive patent law provisions are nevertheless part of EU law and, therefore, ought to be interpreted by the CJEU. This, however, gives rise to three constitutional concerns that are not addressed by AG Bot, namely, (1) a conflict with the principle of democracy as a fundamental value of the Union, (2) a circumvention of the fundamental rights of the European Union, which would otherwise guide the interpretation of the substantive patent law provisions, and (3) a curtailment of effective judicial control as an expression of the rule of law. In sum, the opinion of AG Bot comes as a clear disappointment and should not be followed by the CJEU.
