Contrary to what one might think, the European Convention on Human Rights is not a standard of the European Union.
As such, she is entitled to a separate chapter 🙂
Chapter 1. History
The Convention for the Protection of Human Rights and Fundamental Freedoms, commonly known as the European Convention on Human Rights (or ECHR), is an international treaty signed by the member states of the Council of Europe on November 4, 1950.
The Council of Europe is not a body of the European Union unlike the Council of the European Union and the European Council… you have to be very vigilant!
Chapter 2. Application of the ECHR
Section 2.1. No direct application
As we indicated for the european union law, the ECHR does not apply directly in the patent world, whether for a classic European patent, a unitary patent, whether the JUB is competent or not.
In fact, the EPO or the Union are not signatories to the ECHR, only the member states are.
Section 2.2. Indirect application?
However, the EPO can fully recognize certain general principles of law common to all member states (D11 / 91).
The European Convention for the Protection of Human Rights contains rules which express general principles of law common to the member states of the European Patent Organization. Such rules should therefore be considered as part of the legal system of this Organization and be observed by all its bodies.
By way of illustration, it is entirely possible / understandable to invoke the principles of the ECHR in cases involving:
- public order (T149 / 11) ;
- pharmaceutical products and their implications for health;
- human dignity (T149 / 11 and T369 / 13);
- the patentability of the living and / or embryos.
Chapter 3. Interpretation of the ECHR
Only the European Court of Human Rights can interpret the European Convention on Human Rights.
The Court may seize an application by any person who considers himself the victim of a violation of his rights or freedoms, guaranteed by the Convention and the applications are necessarily directed against a Contracting State of the Convention.
To apply to the Court, the applicant must have exhausted all internal remedies (Article 35 ECHR)
Chapter 4. Source of Law
The sources of rights are relatively limited:
- The European Convention on Human Rights in itself;
- 13 additional protocols (most of which modify the text of the Convention).
Chapter 5. Balance of the different principles of the ECHR
As for the european union law, we may have certain “conflicts” between principles set out in the ECHR.
The European Court of Human Rights has adopted (like the CJEU) the principle of proportionality in order to resolve these conflicts: For the European Court of Human Rights, it should be verified that the law of the States is balanced with the principle that it calls into question.
However, a wide margin of appreciation is left to the legislators of the different countries (Chassagnou c. France, GC, April 21, 1999).
In addition, the principle will be considered more or less “fundamental” depending on the field to which it applies: for example, freedom of expression will be almost sacred in the political field but will be less important in what relates to the commercial field (AshbyDonald c. France, January 10, 2013 or 'Pirate Bay', 19 February 2013).