On September 20, 2011, the General Secretariat of the Council of the European Union has filed Document 14191/11 titled Compatibility of the draft agreement on the Unified Patent Court with the Union acquis. It was classified ?LIMITE? but after having filed a request on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents and the specific provisions concerning public access to Council documents set out in Annex II to the Council?s Rules of Procedure (Council Decision No 2009/937/EU, Official Journal L 325, 11.12.2009, p. 35) the General Secretariat has come to the conclusion that I may have access to this document. Hence, I expect this Document to become accessible in the Register very soon.
The Document conveys a non-paper from the Commission services who have analysed the compatibility of the draft agreement on the?Unified Patent Court (UPC) with the Union acquis. In particular, they have checked the Draft against:
As a general result the Commission services concluded that the relationship between the Brussels I Regulation and the draft agreement on the Unified Patent Court should be clarified in a particular way as suggested in the paper. The Commission services? furtherrecall that the revision of the Brussels I Regulation is ongoing before the co-legislators. In addition, changes to the draft UPC Agreement should be made. It does not appear that issues of compatibility with other Union instruments would arise. A technical analysis of each of the provisions of the?draft UPC Agreement should continue. It is clear that many procedural matters will need to be regulated in the rules of procedure.1 It is obvious that such rules will also need to comply with the relevant Union legislation. The UPC Agreement should clearly provide for this and foresee a mechanism how such compliance with the?acquis may be ensured.
The problems concerning interaction of UPC and Brussels I are summarised as follows:
In the opinion of the Commission, the following points need careful attention:
Hence, some work on the text of Brussels I appears to be necessary in order to properly implement the UPC.
Also with regard to the other parts of the acquis as examined, technical problems need to be resolved.
If all these issues are not sorted out properly right now, the real life practice of the UPC might later on become sort of a complex nightmare with numerous difficult legal problems waiting to be resolved by the Courts. The UPC is meant to provide more legal certainy; if the complex clockwork of Treaties, Regulations and Conventions isn?t adjusted properly, the EU Patent with unitary effect might fail in practice.
For now you may find Document 14191/11 here.
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