Contrary to what one might think, the European Convention on Human Rights is not a norm of the European Union.
It therefore deserves its own separate chapter 🙂
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 an institution of the European Union, unlike the Council of the European Union and the European Council… one must be very careful!
Application of the ECHR
No direct application
The ECHR is not directly applicable in the field of patents, whether for a classic European patent, a unitary patent, or whether the UPC has jurisdiction or not.
Indeed, the EPO or the European Union are not signatories to the ECHR (or at least not yet Article 6(2) TEU), only the member states are.
Indirect application?
Nevertheless, the EPO may well 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 that express general principles of law common to the member states of the European Patent Organisation. Such rules must therefore be considered as forming part of the legal system of this Organisation and be observed by all its instances.
By way of illustration, it is entirely possible/understandable to invoke principles of the ECHR in cases involving:
- public policy (T149/11);
- pharmaceutical products and their implications for health;
- human dignity (T149/11 and T369/13);
- patentability of living matter (C-377/98 CJEU) and/or embryos (C-34/10 CJEU).
Interpretation of the ECHR
Only the European Court of Human Rights may interpret the European Convention on Human Rights.
The Court may be seized by any person who considers themselves a victim of a violation of their rights or freedoms guaranteed by the Convention, and applications must necessarily be directed against a contracting state to the Convention.
To seize the Court, the applicant must have exhausted all domestic remedies (Article 35 ECHR).
Sources of law
The sources of law are relatively limited:
- The European Convention on Human Rights itself;
- 13 additional protocols (most of which amend the text of the Convention).
Balancing the different principles of the ECHR
As with European Union law, we may encounter certain « conflicts » between principles set out in the ECHR.
The European Court of Human Rights has adopted (like the CJEU) the principle of proportionality to resolve these conflicts: For the European Court of Human Rights, it is necessary to verify that the laws of states are balanced with the principle they call into question.
However, a wide margin of appreciation is left to the legislators of the different countries (Chassagnou v. France, GC, April 21, 1999).
Moreover, 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 sacrosanct in the political domain but less important in the commercial domain (AshbyDonald v. France, January 10, 2013 or ‘Pirate Bay’, February 19, 2013).
For example, the ECHR considered that a compulsory license did not violate the principle of property (Smith Kline v. Netherlands, October 4, 1990) because this license had a legitimate aim.