Law of the European Union

In this part, we will take a look at how union law can apply to our patent procedures and how it works.

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Chapter 1. Application of Union Law

Section 1.1. If the JUB is competent

If the JUB is competent, EU law is directly applicable.

Indeed, the agreement on the JUB specifies that the court must apply the law of union (Articles 20 and 24 of theJUB agreement).

Section 1.2. If the JUB is not competent

If the JUB is not competent, the law of union is normally not to be taken into account since the EPC is a source of international law and not a law of union.

However, the EPO can fully recognize certain general principles of law common to all member states (and as many member states are also members of the union…) (D11 / 91).

Chapter 2. Interpretation of the law of union

The question of the interpretation of the law of union necessarily arises.

Indeed, there are several things to know before going any further:

• the CJEU reserves the exclusive right to carry out this interpretation because otherwise differences of interpretation would arise and homogeneity of the application of the law would be called into question (Article 267 TFEU) ;
• only national courts can refer questions of interpretation (ie an international court does not have this capacity) (Article 267 TFEU).

Thus, in order to allow the courts of the JUB to be able to present preliminary questions and thus correctly apply the law of the union, the various parties which negotiated the JUB have astutely made so that a court of the JUB is in reality a national court (or more exactly, a common court of each member country, article 1 of theJUB agreement).

It was also an obligation according to the opinion of the CJEU on the ancestor of the JUB (Opinion 1/09 of March 8, 2011, CJEU).

This “common” court nevertheless greatly simplifies things in practice, and in particular for the enforcement of decisions: indeed, when a JUB court renders a decision, it is a decision of a French, but also Belgian court , but also German, etc.

Chapter 3. Sources of Union Law

Section 3.1. Union Treaties

The European Union is governed by numerous historic treaties, but two main treaties can be cited:

• Treaty on European Union (KILL) ;
• Treaty on the Functioning of the European Union (TFEU).

Section 3.2. Derived sources

Derivative European Union law is composed of the other sources of Union law, defined in Article 288 TFEU :

• regulations, equivalent to national laws at Union level: they establish standards applicable directly in each State.
• directives, with original legal status: intended for all States or sometimes for some of them, they define mandatory objectives but in principle leave States free on the means to be used, within a specified period.
• decisions, mandatory for a limited number of recipients.
• recommendations and opinions, which do not bind the States to which they are addressed. The Court of Justice of the European Union considers, however, that a recommendation can serve for the interpretation of national or Union law.

This derived right is by far the most abundant right.

Section 3.3. Fundamental Rights and General Principles of Union Law

There is no closed list of fundamental rights and general principles of union law, but we can cite:

• Fundamental rights
  • the right of ownership,
  • freedom to exercise a professional activity,
  • inviolability of the home;
  • freedom of opinion;
  • the protection of the family;
  • the protection of privacy;
  • freedom of religion and belief;
  • equal treatment,
• General principles
  • the supremacy of the law of union,
  • the principle of subsidiarity,
  • respect for fundamental rights,
  • the principle of proportionality.

Among the fundamental rights, we should note a certain number of absolute rights (ie which does not tolerate exceptions) such as the prohibition of torture.

Obviously, for a principle to be recognized as a general principle of the law of union, a certain number of clues are necessary and the mere mention of a concept in the treaties is not enough to make it general (e.g. C-147/13 in which Spain maintained that the use of all the languages of the Union was a general principle and therefore objected to languages before the EPO being limited to three official languages).

Section 3.4. Charter of Fundamental Rights

Proclaimed for the first time in Nice on December 7, 2000, then officially adopted in its final version by the Presidents of the European Commission, the European Parliament and the Council of the EU on December 12, 2007, the Charter of Fundamental Rights has acquired a binding legal force with the Lisbon Treaty.

Article 6 KILL provides in its first paragraph that this Charter has “the same legal value as a treaty”.

Regarding IP rights, this charter recalls in Article 17 that intellectual property rights must be protected.

Section 3.5. External agreements concluded by the EU

The external agreements are conventions concluded between, on the one hand, the EU with or without its member states, and on the other hand, third countries, regional groupings or international organizations.

For example, the agreements concluded within the framework of the World Trade Organization (WTO) are external agreements.

Section 3.6. Jurisprudence of the CJEU

The case law includes the judgments of the two jurisdictions of the Court of Justice of the European Union:

• the Court of Justice and
• the tribunal.

This case law is particularly important because it ensures a unified interpretation of the treaties.

Of course, this jurisprudence occasionally defines the general principles of union law (seen above) as well as fundamental rights.

Chapter 4. Hierarchy of sources of rights

In order to synthesize the hierarchy of sources of union rights mentioned above, we can make the following graph:

Chapter 5. Balancing the different sources of rights

Section 5.1. Introduction

If two sources of law, of different hierarchical levels, oppose each other, the source with the highest hierarchy is essential.

This is trivial, but we can have more difficulty when these two sources are of the same “level”, for example:

• if the principle of equal treatment is opposed to the principle of property;
• if the principle of free movement is opposed to the principle of public health.

Section 5.2. Balance in the field of IP

The area of IP leads to a number of situations in which IP rights interfere with principles of union:

• property rights ;
• right to privacy (eg filtering system, C-160/15, September 8, 2016, CJEU) ;
• freedom to undertake (C-160/15, September 8, 2016, CJEU) ;
• freedom of expression (e.g. re-use of a work for political or commercial purposes, C-201/13, 3 September 2014, CJEU) ;
• etc.

We must therefore decide each situation bearing in mind the principle of proportionality.

Section 5.3. Principle of proportionality

This principle of proportionality is a general principle of union (Case 11/70, December 17, 1970 ECJ, now codified by Art 5.4 KILL and Art 52.1 of the Charter of Fundamental Rights).

Normally, this principle of proportionality should be applied by checking a three-step test:

• verification that the law is useful (ie, it achieves the desired goal)
• verification that the law is necessary (ie there is no other way to achieve the goal, given its impact);
• verification that the law is balanced with the principle that it questions.

However, it happens that the CJEU is more flexible and applies only the first two tests (C-58/08 of June 8, 2010, ECJ) or only the last test (C-70/10 of 24 November 2011, ECJ).

It even happens that the CJEU only requests that the standard of the union in question is not manifestly disproportionate (C-331/88, ECJ).

In short, this principle of proportionality is very flexible 🙂