An EU Constitution was agreed on June 18, 2004. Formal signature will take
place in Rome in late October and, if ratified by the member states, will
come into effect on November 1, 2006.
Although much of the press
comment has focussed on changes from the current EU regime, much of the
constitution is effectively a consolidation of the Treaty of the
European Community (nee the Treaty of Rome) and the Treaty of the
European Union (nee the Treaty of Amsterdam). There is one new
provision on intellectual property, Article III-68, which reads as follows:
(1) In establishing an internal market, measures for the
introduction of European instruments to provide uniform intellectual
property rights protection throughout the Union and for the setting up
of centralized Union-wide authorization, coordination and supervision
arrangements shall be established in European laws or framework laws.
(2) A European Law of the Council shall establish language
arrangements for the European instruments. The Council shall act
unanimously after consulting the European Parliament.
The fact that Article III-68 is written in two parts has some practical
significance. The first paragraph permits the adoption of new IP laws by a
qualified majority of the Council and a simple majority of Parliament (this
being the normal requirement for "ordinary legislation" - Article III-302).
The second paragraph language, however, requires unanimity in the Council
(although under Article III-246, abstentions do not destroy "unanimity" if
there are no votes against). Under Article I-24 of the proposed
constitution, a qualified majority in the Council will be achieved by votes
of at least 15 member states constituting at least 55% of the member states
as long as the population of these states is at least 65% of the population
of the EU.
Previously existing IP features of the Treaty of the European Community
(TEC) that have been included in the new constitution include the
following:
|
TEC Article No
|
Constitution Article No
|
|
29 (Free flow of goods)
|
III-42
|
|
30 (Derogation from Free flow for IP etc)
|
III-43
|
|
81 Agreements in restraint of trade unlawful
|
III-50
|
|
82 Abuse of a dominant position unlawful
|
III-51
|
|
133 Common commercial policy includes IP
|
III-217
|
|
225a Ability to create specialist courts
|
III-264
|
|
229a European laws may give ECJ jurisdiction over IP rights
|
III-269
|
Thus it can be seen, although the present community patent proposal
seems to be presently stalled, the EU Constitution provides a framework for
trying again.
