New developments in the EU system of judicial protection: the creation of the Unified Patent Court and its future relations with the CJEU

Abstract

Created in 2013 after a troubled and long standing debate, the Unified Patent Court (UPC) is a ‘Common Court’ of 25 EU Member States that will adjudicate on ‘classical’ European Patents and on the new European patents with unitary effect. Although its establishing Agreement has not yet entered into force, the establishment of the UPC makes for a very interesting case study. It is a unique construct in the field of international courts and it might well inspire the creation of other ‘common jurisdictions’ in other fields lying on the border between international and EU law. Future dialogue between the CJEU and the UPC will have to deal with some controversial issues that might require some innovative approaches in the CJEU’s jurisprudence and some caution on the part of the UPC. Despite all the efforts made to mitigate the international origin of the UPC, it remains a fundamental anomaly in the system of EU courts, and it clearly demonstrates that the current EU system of judicial protection requires profound reconsideration.