When the European Parliament debated the EPLA agreement in October 2006, a resolution was adopted whereby the Legal Service of the EP was asked “to provide an interim opinion on EU-related aspects of the possible conclusion of the EPLA by the Member States in the light of overlaps between the EPLA and the “acquis communautaire”.
“Acquis Communautaires” is a French term meaning, essentially, “the EU as it is” – in other words, the rights and obligations that EU countries share. The “acquis” includes all the EU’s treaties and laws, declarations and resolutions, international agreements on EU affairs and the judgments given by the Court of Justice. It also includes action that EU governments take together in the area of “justice and home affairs” and on the Common Foreign and Security Policy.
On February 1, the Legal Service produced its opinion. It creates a new hurdle for EPLA to become reality anytime soon, as it concludes:
“1) The purpose of the Agreement on the establishment of a European patent litigation system (“EPLA”) is to set up the European Patent Judiciary to settle litigation concerning the infringement and validity of European patents
2) Where common rules have been adopted, the Member States of the European Community no longer have the right, acting individually or even collectively, to undertake obligations with non-member countries which affect those rules
3) Directive 2004/48/EC harmonizes national legislation on the enforcement of intellectual property rights Not only would EPLA govern matters already dealt with by this Directive, but there are also contradictions between the two instruments on a number of matters
4) EPLA aims to lay down rules in certain areas governed by Regulation 44/200 I concerning jurisdiction and the recognition and enforcement of judgments. Notwithstanding the specific provisions of EPLA governing its relations with that Regulation, the conclusion of EPLA would affect the uniform and consistent application of the Community rules on jurisdiction and the recognition and the enforcement of judgments in civil and commercial matters
5) Compliance with Article 98 of EPLA would prima facie constitute a breach of Article 292 EC Treaty
6) It follows that the Community’s competence is exclusive for the matters governed by EPLA and Member States therefore are not entitled on their own to conclude that Agreement.”
 Article 98 of the EPLA agreement reads:
“Disputes between Contracting States. (1) Any dispute between Contracting States concerning the interpretation or application of this Agreement which is not settled by negotiation shall be submitted, at the request of one of the States concerned, to the Administrative Committee, which shall endeavor to bring about agreement between the States concerned. (2) If such agreement is not reached, any one of the States concerned may submit the dispute to the International Court of Justice for a binding decision.”
Article 292 of the EC Treaty reads:
“Member States undertake not to submit a dispute concerning the interpretation or application of this Treaty to any method of settlement other than those provided for therein.”