In the opinion, dated July 2^nd and as yet unavailable in an official English language version, the principle grounds of objection put forward by the AG revolved around three main issues.

According to the AG Kokott, the draft agreement provides insufficient guarantees that the EEUPC will observe EU law.  Of special concern was the reference in the draft agreement to the obligation of the EEUPC to apply “directly applicable Community legislation.”  The principle concern triggered was that types of legal protection assured in large part by the case law of the Court (such as general principles of EU law or fundamental rights) might, on the basis of the proposed wording, be regarded as non-binding by the envisaged EEUPC.  Criticism was also made of the lack of provision for effective remedies should the EEUPC fail to apply or function in conformity with EU law.

Linguistic provisions of the draft were also singled out for censure on the grounds that these could lead to infringement of the rights of the defence.  The AG was primarily concerned that situations were possible in which defendants would be brought before the central division of the EEUPC (which would operate only in English, French and German) and yet such defendants may have neither business operations in any jurisdiction where one of these languages is the official language nor have domicile in such a state. 

Also looming large in the AG’s opinion was criticism of the lack of oversight of administrative proceedings falling under the remit of the European Patent Office (EPO).  Under the proposal, patent infringement disputes between individuals would come before the proposed EEUPC and the draft agreement provides that the final instance chamber of this tribunal would have an obligation to make preliminary references to the Court of Justice where questions of EU law are raised.  In contrast, administrative proceedings for the grant and challenges to the grant of patents would continue to be dealt with by the European Patent Office (EPO), a body which is under no obligation and indeed possesses no capacity to make references to the Court of Justice.  Perhaps unsurprisingly, AG Kokott took the view that this raised undesirable risks of inconsistency in the application of EU law.

The opinion of the Court itself is now keenly awaited. Stay tuned...