EU accession to the EPC needs assent from EP
An essential part of the Community patent is the European Union's accession to the European Patent Convention. Such an accession is executed under art 300 of the Treaty establishing the European Community. The European Parliament has to be consulted, or has to give assent. A essential difference. There are indications that accession to the EPC can only be concluded after the assent of the European Parliament has been obtained.
We take a look at the second subparagraph of Article 300(3):
"By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained."
Art 300 : http://europa.eu.int/eur-lex/en/treaties/selected/livre257.html
Case law on 300(3)
There has been a case about "important budgetary implications", C-189/97, the EP went to the ECJ. The ECJ thought them not important enough, the EP lost.
The Community Patent Court is directly related to accession to the EPC. The proposal has a Financial Statement showing budgetary implications that can be regarded as important.
Equally interesting is Case C-317/04, part of it is about "infringement of the second subparagraph of Article 300(3) EC, because Directive 95/46 was amended;"
This question was never answered by the court, the agreement being invalid for other reasons. There is only an opinion of Advocate General Léger on it. Two quotes:
"181. That said, it seems that the Court has not yet ruled on the meaning to be given to the relatively vague expression amendment of an act adopted under the procedure referred to in Article 251."
"183. Generally speaking, I am of the opinion that, in order for there to be amendment by an international agreement of an internal Community act adopted under the codecision procedure, one of the conditions is that the field of application of the agreement overlap with that of the internal act. In that case, the internal act may be amended by the international agreement, either if the agreement contains a provision which conflicts with one of those of the internal act or because the agreement adds to the content of the internal act, even when there is no direct conflict."
More on this case: http://wiki.ffii.org/EcjCaseC31704
There seem to be no cases on "other agreements establishing a specific institutional framework by organising cooperation procedures".
Comment Ante Wessels
1
The Community Patent Court is directly related to accession to the EPC. The proposal has a Financial Statement showing budgetary implications that can be regarded as important. Accession to the EPC can only be concluded after the assent of the European Parliament has been obtained.
2
The second subparagraph of Article 300(3) protects the European Institutions. Important in this case is whether the European Parliament's prerogatives are infringed. Following Advocate General Léger's reasoning, this is the case if an "internal act may be amended by the international agreement, either if the agreement contains a provision which conflicts with one of those of the internal act or because the agreement adds to the content of the internal act, even when there is no direct conflict."
The EPC definitely adds to the content of current internal acts. Accession to the EPC can only be concluded after the assent of the European Parliament has been obtained.
Furthermore, accession to the EPC will make the EPC Community law. As a result subsequent changes of the European Patent Convention will also be Community law. The European Parliament will have no influence on these changes, its prerogatives will be infringed in the future too. While not mentioned, an undermining of the constituting treaties of the Community is an even more important reason for assent to be needed.
3
The European Parliament could already ask for an Opinion by the ECJ (see below).
Opinion
Art 300.6 mentions the possibility to ask for an opinion.
""6. The Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union."
Example:
Here is art 48:
48: "The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded. (...) "
links
Search form ECJ case law: http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=en
Belgian analysis of Community patent effect on European patents http://wiki.ffii.org/CompatEffectEpatentsEn
