Friday, 8 October 2010

Why is Europe falling behind? Look at EU patent

The governments of the EU member states meet in the Council of the European Union, Monday to Tuesday (11 to 12 October 2010) in Luxembourg.

Yes, even when the Council presidency is in Belgian hands (Brussels), the October Council meetings are held in the Grand Duchy.

Internal market

The Council configuration known as Competitiveness (Internal Market, Industry, Research and Space) has the following internal market items on its agenda:

– Proposal for a Council Regulation on the translation arrangements for the European Union patent
– Political orientation
Public deliberation

– Functioning of the internal market

(a) Communication from the Commission: Single market delivering smart sustainable and inclusive economic growth
– Presentation by the Commission
– Exchange of views
Public debate

(b) Report from the Commission on monitoring the retail market
– Progress report

You can follow press conferences and public deliberations by video streaming, courtesy of the audiovisual services of the Council.

EU Patent

If you want to understand why Europe is falling behind, you can study the neverending(?) history of the future Community Patent, nowadays the EU Patent, with the Commission’s latest proposal for translation arrangements (press release 1 July 2010, IP/10/870) and Frequently Asked Questions (MEMO/10/291).

The official Commission communication is:

Proposal for a Council Regulation (EU) on the translation arrangements for the European Union patent; Brussels, 30.6.2010 COM(2010) 350 final; consultation procedure2010/0198 (CNS)

Around the time of the informal meeting of competitiveness ministers (internal market) on 29 to 30 September, EurActiv reported on the efforts of the Belgian EU Council presidency to find a compromise in the battle about the language regime for the EU patent, and suggested that the deadlock may lead to the launch of enhanced cooperation between a group of member states. Nikki Tate in the Financial Times essentially had the same story.

Europolitics presents the state of play (= blockade) between the member states (7 October 2010), as does Simon Taylor in the European Voice (7 October 2010).

Legal: Unanimity for language regime

In the Lisbon Treaty the member states were able to agree on the ordinary legislative procedure for European intellectual property rights, but unable to include the language requirements, which need unanimity.

The member states failed then and will probably fail again, leaving European businesses with ten times the costs of patent protection in the USA.

The relevant provision is Article 118 of the Treaty on the Functioning of the European Union, with the language regime in the second paragraph (OJEU 30.3.2010 C 83/96):

Article 118 TFEU

In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements.

The Council, acting in accordance with a special legislative procedure, shall by means of regulations establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament.


Ewa Bj√∂rling, who continues as trade minister in Fredrik Reinfeldt’s new Swedish government appointed 5 October 2010, says that Sweden supports the three-language regime proposed by the Commission (English, German, French).

On the same page there is a link to the customary annotated agenda (kommenterad dagordning; in doc form), posted yesterday. The document states that two member states are opposed to the Commission proposal, but diplomatically it does not name Italy and Spain.

If the Council fails to reach unanimity, Sweden is willing to initiate enhanced cooperation for a working language regime.


The Europe Committee of the Danish Parliament (Folketingets Europaudvalg) offers a memorandum on the issues for the Competitiveness Council (with the EU patent language regime from page 8).

It recalls the Commission’s original proposal (for a then Community patent) in 2000 and the negotiation history, and notes the unanimity requirement in Article 118(2) TFEU. A unanimous decision on the language arrangements is needed for the political agreement on the rest of European patent protection, negotiated during the Swedish EU Council presidency, to enter into force.

Provisionally, Denmark supports a possible compromise based on a restricted language regime, but the memorandum notes that the Council presidency and the Commission have indicated starting the process towards enhanced cooperation in case of failure.


The EU patent is an example of ‘freely cooperating, sovereign nation states’, and European businesses continue to foot the bill until the deadlock is broken.

Ralf Grahn

P.S. I have decided to give my “domestic” Grahnlaw blog a new twist. Instead of, or at least in addition to cross-posting EU entries in Finnish from Eurooppaoikeus, I intend to blog in Finnish, Swedish and English about entrepreneurship, work and expats in Finland, giving the blog a distinct identity.