Live from Brussels May-June 2011

by Anne-Catherine de Bruchard, Director of the Fondation’s offices in Brussels

A Standardized European Patent

Following the decision of the European Council and the European Parliament to implement enhanced cooperation between 25 of the 27 EU countries (Spain and Italy having indicated that they did not wish to participate), the European Commission introduced two proposed Regulations that define the terms and conditions for the creation of a unitary patent protection, establish the legal effects thereof and the appropriate translation procedures.

If approved by the European Council and the European Parliament, these regulations will allow for:

– the inventions of European patent holders to enjoy the same degree of protection throughout the 25 signatory EU countries,

– patent applications to be filed in any language (although the patents themselves may only be submitted in English, French or German, and it will be incumbent upon the applicants to have them translated into the language of their own country for a fee payable for the translation services so provided),

– the price of a European patent is thus being decreased from the current rate today of approximately €32,000 to €2,500 in 2013, and then, over the longer term, to €680.

The proposed Regulation concerning the unitary patent
The proposed Regulation concerning the applicable translation arrangements:

Intellectual Property Rights

The European Commission has adopted a global strategy aiming to modify the legal framework applicable to intellectual property rights with the goal of allowing inventors and users to adapt to the new opportunities offered by the digital era.

In a report entitled “A Single Market for Intellectual Property Rights– Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe”, the Commission announced that it will gradually round out the planned patent system with a series of proposals that will primarily be applicable to the protection of commercial trademarks, access to copyrighted works and to reinforcing the struggle against counterfeiting and piracy.

It should be noted that the Commission emphasizes, for example, that “the significant differences in national laws on the nature and scope of trade secrets protection, as well as regards the available means of redress and respective remedies, inevitably result in different levels of protection” and underscores that “a number of Member States have specific civil law provisions on trade secrets: Bulgaria, Czech Republic, Denmark, Estonia, Germany, Italy, Lithuania, Poland, Portugal, Slovakia, Slovenia, Spain, and Sweden. Some of these additionally provide for criminal sanctions. However, a significant number of Member States do not have any specific provisions of civil law on trade secrets: Belgium, Cyprus, United Kingdom, Ireland, Finland, Luxembourg, Malta, the Netherlands, Romania, and France (although the French IP Code regulates some aspects of it). Trade secrets can nevertheless be protected, at least in part, by other means, such as a general cause of prohibition of unfair competition, tort law, contract law, labour law and criminal law.”

The European Commission has also published a proposed Regulation involving customs controls made by customs authorities with respect to enforcement of intellectual property rights as well as a proposed Directive on certain permitted uses of orphan works.

The report
The proposed Regulation on customs controls
The proposed Directive on orphan works

A Single Market

After having analyzed the contributions received during the four months of public consultation that it established, the European Commission has identified “12 levers to boost growth and strengthen confidence.” Each lever has a “flagship initiative” on the basis of which the Commission commits to make proposals in the coming months with the goal of final agreement from the European Parliament and the European Council prior to the end of 2012.

The Communication:

European Cooperative Society

Regulation No.1435/2003 on the status of the European Cooperative Society which has been in effect since August 18, 2006, anticipated that the European Commission would submit a report on its application five years after it went into effect and that it would contain proposals on amendments. In order to garner opinions on this matter, a public consultation is open until June 15, 2011.

The study that serves as a basis for the consultation primarily examines the principal questions of interpretation raised by the hierarchy of sources of law that apply to a European Cooperative Company and explains the way in which the text is implemented in Member States.

Public consultation

European contract law

The European Commission published the feasibility study on the European contract law for which purpose it had commissioned a group of experts assembled a year ago. Complementing the opinions collected during the consultation on the Green Book, which was completed last January 31, the European Commission is now asking interested parties to respond to the text issued by the group of experts, answering a series of questions on it (pages 8 and 9 of the document) by July 1, 2011.

As the European Commission emphasized, “Within the EU, the current fragmentation of contract laws contributes to higher costs, increased legal uncertainty for businesses and lower consumer confidence in the Single Market. Transaction costs (like adapting contractual terms and commercial policies to up to 27 legal systems) and the legal uncertainty involved in dealing with foreign contract laws make it particularly hard for SMEs, which make up 99% of EU businesses, to expand within the Single Market.”

The Feasibility Study submitted to consultation

Protection of Victims

Given that the Treaty of Lisbon has vested the European Union with competence to legislate in the area of the laws of victims of crime, the European Commission recently proposed a series of measures aiming to guarantee a minimum level of rights, support and protection to victims throughout the entire area of the European Union, irrespective of their country of origin or residence.

The package is comprised of a proposed Directive that establishes minimum norms for victims in matters related to them being welcomed, clarity of information regarding their rights, help and protection. It is also comprised of a proposed Regulation related to mutual recognition of protection measures that enable guarantees. The guarantees are that victims who benefit from a protection measure in their place of residence in another Member State do not lose such protection when they cross the internal borders of the European Union.

The Commission points out that Europeans make 1.25 billion journeys across the European Union, which is why it is important to create for them a truly European area of justice that enables them to advance the same basic rights everywhere and to have equal trust in the overall legal systems of the countries throughout the European Union.

The Communication

The proposed Directive:
The proposed Regulation

European Arrest Warrant

According to the Evaluation report on the implementation of the European Arrest Warrant by the Member States, 54,689 European Arrest Warrants have been issued since its creation in 2007, and this has resulted in the extradition of 11,630 suspects. The main advantage of this system is to have reduced the time for an extradition procedure from an average of one year to 16 days from when the suspect consents to extradition, and to 48 days when the suspect does not so consent.

In addition, the report underscores improvements that can be brought about in the area involving transposition and application of the framework decision, for example, the necessity to apply the criteria of proportionality in a uniform manner throughout all of the Member States and to announce that the European Commission will issue proposals prior to the end of 2011 to step up training of legal authorities and legal professionals in this regard.

The Report:
The work document that goes with the Report (in English)

SMEs and a Global Market

Within the framework of the Small Business Act, the European Commission anticipates launching a strategic initiative to help SMEs optimally make of use the possibilities of a global market. In preparation for issuing proposals that actually relate to the needs of relevant company managers, the Commission initiated a public consultation on this subject, which is open until July 12, 2011.

Public consultation:

Bilateral Investment Agreements

In order to resolve problems of legal uncertainty that could arise for investors due to the fact that the Treaty of Lisbon does not contain any transitional clauses for the many bilateral investment agreements that the Member States have entered into with third-world countries prior to the effective date of the Treaty, and which thereafter will lie within the sole competence of the European Union, the EU ministers of commerce, meeting in Council in Brussels on May 13, 2011, spoke out in favor of the regulatory proposition that the European Commission presented on this subject back in July 2010.

This proposal, which offers a solid, transitional legal solution authorizing the continued validity of these agreements, estimated to number some 1,200, was amended by the European Parliament in order to limit the power of review that the European Commission proposed on the matter. Negotiations on the draft text are currently under way between the three institutions.

The original text of the proposed Regulation

The Official Journal of the European Union

The Official Journal of the European Union has been a paper-based publication since 1958. It has been available on the internet since 1998, but up until now only the printed version has been regarded as legally binding. It was therefore not possible to cite a legal rule or to enforce compliance with obligations on the basis of the electronic version.

To remedy this problem, the European Commission recently presented a proposed Regulation to allow use of the electronic version as an official and authentic source, which has the threefold advantage f ease of access for the greatest number of users, being free of charge and immediately available.

The proposed Regulation

National Authorities Regulating Competition

The Merger Working Group, comprised of the European Commission and the national authorities regulating competition in the EU, have established a project of Best Practices on Cooperation in Merger Review “to encourage and to facilitate the sharing of information between national authorities regulating competition in the heart of the EU when they examine one and the same merger or acquisition without meeting the conditions required to be submitted to a one-window system, but must be approved earlier by several national jurisdictions. The information that could be shared usefully includes significant developments concerning different steps of the exam process, evaluation of facts and, if necessary, corrective measures foster and facilitate information sharing between national competition authorities in the EU when they are engaged in the review of the same merger or acquisition that does not qualify for the one-stop shop review by the Commission at EU level, but needs approval in several national jurisdictions”.

After consultation with participating parties, the European Commission will publish a final version of good cooperation practices in the fall of 2011.

The draft Best Practices:

Data Retention

According to the Evaluation report under Directive 2006/24/EC, data retained from telecommunications plays an important role in protecting the public from harm arising from serious criminal acts by providing essential evidence to solve criminal cases.

However, the report states that the transposition of the Directive is uneven across the Member States; disparities remain between national legislations, which creates difficulties for telecommunications operators and that there is in sufficiently assurance that data is stored and used in full compliance with the law with respect to personal privacy and the protection of data that is of a personal nature. This has led certain national jurisdictions to repeal l the transposition text from the Directive.

Based on this observation, the European Commission intends to examine the rules in force with the various police services, legal authorities and participating parties from different EU countries with a view toward proposing an improved legal framework.

The Evaluation report

For the record: a column of current events in Europe, updated bi-weekly, is available on the Europe page from the website for the Fondation pour le droit continental https://www.fondation-droitcontinental.org/jcms/c_9801/europe

Fondation pour le droit continental – Brussels Offices – Multiburo n° 402 – 38/40 Square de Meeus – B – 1000 Bruxelles

Tél. : + 32 (0)2 401 87 64 – Fax. : + 32 (0)2 401 68 68 – acdebruchard@fondation-droitcontinental.org