File Inspection: EU Council Still Not Disclosing ECJ Refe...

• 9669/09: Enhancing the patent system in Europe (c) Request for an opinion by the European Court of Justice on the compatibility with the EC Treaty of the envisaged Agreement creating a Unified Patent Litigation System - Agreement in principle
• 9550/09: Preparation of the Competitiveness Council of 28 - 29 May 2009 Enhancing the patent system in Europe (c) Request for an opinion by the European Court of Justice on the compatibility with the EC Treaty of the envisaged Agreement creating a Unified Patent Litigation System - Agreement in principle
• 9076/09: Request for an opinion by the European Court of Justice on the compatibility with the EC Treaty of the envisaged Agreement creating a unified patent litigation system

Up to now I don't have received any Official Communication as to whether or not my request has been granted; nevertheless I just noticed that the following Documents suddenly were accessible on the Council server:

• 9669/09 [full; un-redacted]
• 9076/09 [partial; heavily redacted]

Document 9550/09 is still not accessible. It might theoretically be or not be true that the partial accessability of the 9669/09 and 9076/09 Documents is somehow connected with my request.

However, it appears as if the institution in charge with processing my request, namely DG F, Communication - Transparency, might still not be prepared to fully disclose which points of law are considered at stake in the context of the ECJ referral.

Document 9669/09 appears to be very much merely some narrative of the institutional processes than any discussion of substantial points:

"[...] The idea of a mixed agreement, to be concluded between the Community, its Member States and other Contracting States of the European Patent Convention, has been gathering support from a very large number of delegations. At the same time, there is broad agreement amongst delegations that it would be appropriate to seek an opinion from the European Court of Justice (ECJ) under Article 300(6) EC Treaty regarding the compatibility of such an agreement with the EC Treaty.

The need for such clarification has been acknowledged both by the Council Legal Service and by the Commission in its recent Recommendation to the Council to authorise the Commission to open negotiations on an agreement creating a unified patent litigation system. The Working Party discussed a Presidency Note on this matter on 8 May 2009.

The Presidency has suggested a two-step approach in the consultation of the ECJ. First of all, agreement should be reached in the Council on the principle of consulting the ECJ under Article 300(6). Secondly, the Council Legal Service would draw up the memorandum to be submitted for the consultation of the ECJ, which would be expected to be examined within the preparatory bodies of the Council in June. Following this examination , the full memorandum will then be presented to the Council for adoption as soon as possible before its submission to the ECJ."

I suspect that the original Document 9076/09 contains at least some rough sketch of the legal points at stake; however, it looks as if they have fallen victim to redaction.

I shall keep the readers of this Blog informed on any further developments.

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