European convention of human rights

Contrary to what one might think, the European Convention on Human Rights is not a norm of the European Union.

As such, she is entitled to a separate chapter 🙂


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 4 November 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!

Application of the ECHR

No direct application

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.

Indeed, the EPO or the Union are not signatory to the ECHR (or at least for the moment Article 6 (2) TEU), only member states are.

Indirect application?

However, the EPO can fully recognize certain general principles of law common to all member states (D11 / 91 and Article 6 (3) TEU).

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 must therefore be considered as part of the legal system of this Organization and be observed by all its instances.

By way of illustration, it is quite possible / understandable to invoke principles of the ECHR in cases involving:

Interpretation of the ECHR

Only the European Court of Human Rights can interpret the European Convention on Human Rights.

The Court may be seized of a petition by any person who considers himself a victim of a violation of his rights or freedoms, guaranteed by the Convention and the petitions are necessarily directed against a Contracting State of the Convention.

To appeal to the Court, the applicant must have exhausted all internal remedies (Article 35 ECHR)

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).

Balance of the various principles of the ECHR

As for the european union lawwe may have some "conflicts" between principles set out in the ECHR.

The European Court of Human Rights has adopted (as the CJEU) the principle of proportionality in order to resolve these conflicts: For the European Court of Human Rights, it is necessary to verify 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 quasi-sacred with respect to the political field but will be less important with regard to concerns the commercial field (AshbyDonald c. France, January 10, 2013 or 'Pirate Bay', 19 February 2013).

For example, the ECHR considered that a compulsory license did not violate the principle of property (Smith Klein v. Netherlands, October 4, 1990) because this license had a legitimate purpose.

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