Hoffmann Eitle - München, London

01.12.2009 -

The Treaty of Lisbon Came into Effect on 1 December 2009 With a New Legislative Power for Intellectual Property Rights

The Lisbon Treaty came into effect on 1 December 2009 in the 27 Member States of the European Union, affecting about 500 million EU citizens. The Lisbon Treaty amends the Treaty on the European Union (TEU), and it also amends the Treaty Establishing the European Community that is now called the Treaty on the Functioning of the European Union or just TFEU. The two treaties, i.e. the TEU and the TFEU, have equal value and have been supplemented by protocols of equal value. Consolidated versions of the treaties have been published at www.consilium.europa.eu. For more information, we would also like to recommend “The Treaty of Lisbon: An Impact Assessment” of 13 March 2008 by the House of Lords, European Union Committee, that can be found at www.parliament.the-stationery-office.co.uk.

Some of the important changes are the following. The European Union has, with the Lisbon Treaty, become a new, supranational organization, with the European Community ceasing to exist. The Charter of Fundamental Rights is now binding in the Member States and thus action in this regard can be taken at the courts of the European Union (with the exception of the courts of the United Kingdom). “Ordinary legislative procedures” shall now apply to all political sectors, with the exception of foreign and security policies. “Ordinary legislative procedures” means that the right of initiative lies with the Commission and legislation is reached in co-decision procedures between Council and Parliament. The Council decides with a qualified majority. For a qualified majority, 55% of the Member States are necessary, representing at least 65% of the EU population (presently this is 15 of the 27 Member States). This system of a “double majority” will not, however, come into effect until 2014. With the co-decision procedure the significance of the European Parliament has been considerably expanded.

Of particular significance is the extension of the competencies of the EU and the application of ordinary legislative procedures in the “area of freedom, security and justice” (Title V of the TFEU), comprising the areas of border controls, asylum and immigration, judicial cooperation in civil matters, and the cooperation of the courts and the police in criminal matters. The special rules applying to these areas to Denmark, the United Kingdom and Ireland have been prolonged.

Further, the European Union now has two new executive positions, i.e. the permanent president of the European Council and the new High Representative for foreign policy who represents the EU and who will serve as the head of the new Foreign Affairs Council.

In the area of intellectual property, the European Union has a new legislative power to create “European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union” (Art. 118 TFEU). The new Art. 118 TFEU has to be understood as a declaration of the intent to successfully conclude the long-standing efforts to create a Community Patent. A European utility model can also be created on this basis. According to Art. 118 TFEU, two laws will be necessary to create the Community Patent: one regarding the Community Patent system in accordance with Art. 118(1) that can now be passed with a qualified majority in an ordinary legislative procedure together with the European Parliament (according to the legal provision valid to date, i.e. Art. 308 EC Treaty, unanimity was required). In a “special legislative procedure” a further regulation will have to be passed according to Art. 118(2) with regard to the language arrangements, and this will have to pass unanimously. The EU Competitiveness Council has decided on December 4, 2009 on the basic principles of the Community Patent and on the Unified Patent Litigation System.

The planned “unified patent court system” that is supposed to be passed together with the law on a Community patent will have to be agreed upon between the Member States of the European Patent Convention (EPC). The procedure for the conclusion of interna¬tional agreements as pursuant to Art. 218 TFEU shall apply (Art 207 (3) TFEU). The European Union will be represented in negotiations or dealings with international organizations with regard to intellectual property rights by the High Representative of the Union for Foreign Affairs and Security Policy and by the Commission (Art. 220 TFEU).

The European antitrust laws remain unchanged in Articles 101 et seq. EFEU. Art. 81 EC Treaty is now Art. 101 TFEU and 82 EC Treaty is now Art. 102 TFEU, etc.

As to new terminology, the term “European Community” has been replaced by “European Union”, and “Common Market” by “Internal Market”. Those directives and regulations that are passed on or after 1 December 2009 will now be called “EU Directive” or “EU Regulation” (if the logic of this were followed, the Community Patent should be called “EU Patent”). The European Court of Justice will now be called the “Court of Justice of the European Union”, and the “Court of First Instance” is now just the “Court”. “Court chambers” have been renamed as “specialized courts”. The Council may create specialized courts together with the European Parliament, such as courts for patent or trademark cases.