Application and sources of Union law

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

Application of Union law

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 the union (articles 20 and 24 of theJUB agreement).

If the JUB is not competent

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

Interpretation of the law of union

There is necessarily the question of the interpretation of the law of the union.

Indeed, you have to know several things before going further:

  • the CJEU reserves the exclusive right to make this interpretation, 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 ask preliminary questions of interpretation (ie an international court does not have this capacity) (Article 267 TFEU).

Thus, in order to allow the courts of the UDB to be able to submit preliminary questions and thus correctly apply the law of the union, the various parties who negotiated the JUB cleverly made sure that a court of the JUB is in fact 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 makes things much easier in practice, and in particular for the execution of decisions: indeed, when a JUB court renders a decision, it is a decision of a French court, but also a Belgian court. but also German, etc.

Sources of Union Law

Union Treaties

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

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

Derived sources

Derived 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 directly applicable in each State.
  • directives, with their original legal status: intended for all or some States, they set obligatory objectives but in principle leave the free States free to decide on the means to be used within a given period.
  • decisions, mandatory for a limited number of recipients.
  • recommendations and opinions, which do not bind the States to which they are addressed. However, the Court of Justice of the European Union considers that a recommendation can be used for the interpretation of national or Union law.

This derived right is by far the most abundant right.

Fundamental Rights and General Principles of Union Law

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

  • Fundamental rights
    • the right of ownership,
    • the freedom to exercise a professional activity,
    • the 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 the union,
    • the principle of subsidiarity,
    • respect for fundamental rights,
    • the principle of proportionality.

Among the fundamental rights, there are a number of absolute rights (ie, which do not tolerate exceptions) such as the prohibition of torture.

Of course, for a principle to be recognized as a general principle of the law of the union, there must be a certain number of clues, and the mere mention of a concept in the treaties is not enough to make it general (ex. C-147/13 in which Spain maintained that the use of all the languages of the Union was a general principle and therefore opposed that languages before the EPO should be limited to three official languages).

Charter of fundamental rights

First proclaimed in Nice on 7 December 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 12 December 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 the treaties".

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

External agreements concluded by the EU

The external agreements are agreements between the EU, with or without its Member States, and third countries, regional groupings or international organizations.

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

CJEU case law

The case law includes the judgments of the two courts 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 treaties.

Of course, this case-law defines from time to time the general principles of the law of the union (seen above) as well as the fundamental rights.

Hierarchy of sources of rights

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

Hierarchy of Union standards

Balance between different sources of rights


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

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.

Balance in the field of IP

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

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

Principle of proportionality

This principle of proportionality is a general principle of the 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 desired goal, given its impact);
  • verification that the law is balanced with the principle that it calls into question.

However, sometimes 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 asks for the fact that the norm of the union in question is not manifestly disproportionate (C-331/88, ECJ).

In short, this principle of proportionality is very flexible 🙂

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