Position of the problem
It is important to understand the legal status of this court, because its construction was one of the biggest difficulties during the construction of this court (it is enough to see the number of "recitals" relating to the CJEU in theAgreement on the Unified Patent Court to see the sensitivity of this question).
Indeed, this jurisdiction is created within the framework of reinforced cooperation of certain members of the European Union (Regulation n ° 1257/2012).
Consequently, the decisions it renders must comply with the case law of the Court of Justice of the European Union.
The JUB agreement makes it clear that the JUB must apply the law of union (Articles 20 and 24 of theAgreement on the Unified Patent Court), But this is not enough.
In order to comply with CJEU case law, the Union Court of Justice should be able to impose its views on the JUB (see CJEU opinion 01/09 " Agreement on the creation of a unified patent litigation system" ), and so :
- that the decisions of the CJEU are legally binding and
- that the divisions of the JUB may ask him questions for a preliminary ruling.
However, today, only the courts of the member states can ask these questions for a preliminary ruling (Articles 256 and 267 TFEU).
So how can we allow the JUB to do the same, without having to modify the Union Treaties?
Response to the problem
Well nothing could be simpler…
Considering that the JUB is a jurisdiction common to all member states (article 1 of theAgreement on the Unified Patent Court) ... or more exactly both:
- an international court,
- French jurisdiction,
- a German court,
- an Italian court,
- Belgian jurisdiction,
Therefore, being a national court, it can ask preliminary questions to the CJEU (article 21 of theAgreement on the Unified Patent Court) and remains subject to its decisions.