The EPO’s latest round of industrial relations
problems have been well documented. So have disagreements
between the EPO and the European Commission over the Unitary Patent. The spat between
member states about what to do with OHIM’s budget surplus resurfaced
again this month. Now a row between judges at the Court of
Justice and the General Court has broken out over the number of
judges that should be appointed at the lower court in
Last year the Court of Justice submitted a second proposal to increase the number of
judges at the General Court, which handles cases from the
European institutions, including Community trade mark and
Community design appeals from OHIM. Its earlier proposal, back
in 2011, was blocked by member states who disagreed over how
the new appointments should be divvied up between them.
But now it is clear
that judges from the General Court (right) are far from
convinced that they need new colleagues.
On Tuesday a group of General Court judges met with key MEPs
to outline their opposition to the proposals. In doing so, they
exposed the level of tension between the two courts.
In the closed meeting with the rapporteur and shadow
rapporteurs from the Legal Affairs Committee of the European
Parliament considering the proposal, the judges presented a
document in which they claimed "[t]he last thing the General
Court needs is the creation of a Mexican army of new judges,
supported by a reduced number of qualified personnel" and
rejected claims from the Court of Justice that there is a
backlog of cases developing in their court.
Judge Irena Pelikánova of the Czech Republic also
argued that the Luxembourg court should consider setting up a
specialised court for trade marks, models and designs. The
Court of Justice rejects this idea, citing difficulties in
predicting what kinds of cases comes before the General Court
and how they can be resourced flexibly. There is also a
reluctance from some member states to contemplate specialised
courts for historical reasons.
But on Tuesday Pelikánova told the influential MEPs
that a specialised IP trade mark court with specialist IP
judges would ensure "greater coherence in the case-law on the
subject". A General Court consisting of 28, or even 56, judges
"could never achieve these ends".
She wrote in her briefing document: "Co-operation with the
OHIM might permit the procedure for the review of decisions in
the field of trademarks to be simplified (e.g. by doing away
with the Boards of Appeal), which would further reduce the cost
of the system. The Court of Justice would continue to be able
to survey the coherence of the case-law by the right to
re-examine decisions of the General Court on appeal and by
retaining jurisdiction to hear preliminary rulings in the field
of trademarks, designs and models. Judges of the General Court
could devote all of their working time to more important cases
from an economic and legal standpoint, thereby reducing the
length of such proceedings."
The question of how IP cases are dealt with in Luxembourg
surely deserves more discussion – and not just in
closed meetings. Do let us know your views.