Position of the issue
It is important to understand the legal status of this court, as its establishment was one of the greatest challenges in creating this jurisdiction (it suffices to see the number of « recitals » relating to the CJEU in the Agreement on a Unified Patent Court to appreciate the sensitivity of this question).
Indeed, this court is established within the framework of enhanced cooperation among certain members of the European Union (Regulation No 1257/2012).
The decisions it issues must therefore comply with the case law of the Court of Justice of the European Union.
The UPC Agreement clearly states that the UPC must apply Union law (Articles 20 and 24 of the Agreement on a Unified Patent Court), but this is not sufficient.
Indeed, to comply with CJEU case law, it is necessary for the Court of Justice of the European Union to be able to impose its views on the UPC (see Opinion 01/09 of the CJEU « Agreement on the creation of a unified patent litigation system« ), and therefore:
- that the decisions of the CJEU be legally binding, and
- that the divisions of the UPC may refer preliminary questions to it.
However, currently, only the courts of the Member States may refer such preliminary questions (Articles 256 and 267 TFEU).
How, then, can the UPC be enabled to do the same without amending the Union treaties?
Solution to the issue
Well, it is quite simple…
By considering that the UPC is a court common to all Member States (Article 1 of the Agreement on a Unified Patent Court)… or more precisely, both:
- an international court,
- a French court,
- a German court,
- an Italian court,
- a Belgian court,
- etc.
Thus, as a national court, it may refer preliminary questions to the CJEU (Article 21 of the Agreement on a Unified Patent Court) and remains subject to its decisions.