This month’s signing by the Czech Republic of the Lisbon Treaty updating the rules of the European Union will bring a few noticeable changes to the way the EU conducts policymaking activities, and to its focus on intellectual property rights.

Czech President Vaclav Klaus signed the Lisbon Treaty on 3 November, the last of the 27 EU members to ratify it, and the treaty is expected to enter into force on 1 December, according to the EU Swedish presidency website.

Changes under the treaty are expected to include a strengthened role for the European Parliament – whose members are directly elected by European citizens – and a greater involvement of national parliaments.

EU representation in third countries should evolve with the new treaty. According to a Swedish presidency press release, a new European external relations service with EU delegations around the world will be created.

The Lisbon Treaty was signed on 13 December 2007, in Lisbon, Portugal. The treaty amends the previous EU and European Community treaties, without replacing them, according to the EU website. The text of the actual treaty, published under number C306 by the Official Journal of the EU on 17 December 2007 has been included in a consolidated version, numbered C115, gathering previous treaties language, and published on 9 May 2008.

According to Article 221 of consolidated version, “Union delegations in third countries and at international organisations shall represent the Union.” Those delegations will be placed “under the authority of the High Representative of the Union for Foreign Affairs and Security Policy.” Union delegations will act in cooperation with member states’ diplomatic and consular missions.

Article 32 of the consolidated version of the treaty also states that “the diplomatic missions of the member states and the Union delegations in third countries and at international organisations shall cooperate and shall contribute to formulating and implementing the common approach.”

This implies changes in European delegations throughout the world. Contacted by Intellectual Property Watch, the Permanent Delegation of the European Commission in Geneva said the issue was currently under discussion.

According to an EU official, the delegations of the European Commission will become delegations of the EU. The Council liaison offices based in New York and in Geneva should be merged into the EU delegations. It is not possible at this stage to explain the detailed process engaged to achieve this, the official told Intellectual Property Watch.

IP Rights to be made Uniform but EPO Role Unchanged

Meanwhile, intellectual property rights should be centralised throughout the Union, and European intellectual property rights receive uniform protection, according to the text of the consolidated version of the treaty.

“The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements,” says Article 118 of the consolidated version. Article 118 includes Article 97.a of the Lisbon Treaty original text.

The entry into force of the Lisbon Treaty should have no direct impact on the European Patent Office (EPO), an EPO official told Intellectual Property Watch. The EPO is a body of the European Patent Organisation, which is an independent international organisation, based on the European Patent Convention (EPC), an international treaty.

The EPO’s mandate is based on the EPC, which could only be amended if all 36 contracting states agree.

The idea of a European Community patent that would apply not only at national level but in all EU countries has been discussed for 50 years but never reached a conclusion, according to an EPO official. EU members have never unanimously agreed on a European patent. Since the Lisbon Treaty still contains some language indicating that unanimity is needed on this issue, its coming into force should have no consequence for a uniform European patent unless all parties agree. However, the official said, “on the basis of the current proposal for a Community patent, it will be the EPO which will grant Community patents,” and “therefore it is also suggested that the EPC is amended in order to make this possible.”

In order to amend the EPC, a diplomatic conference would have to be convened after the 27 EU member states agree. If the text is adopted by the diplomatic conference, the amended EPC would have to be ratified by all EPC contracting states. “This would also have been necessary under the Nice Treaty,” a treaty on the expansion of the EU, he said. The Community patent would only apply in the 27 EU countries but not the other nine members of the EPC.

Intellectual property also appears in trade as Article 307 says that the common commercial policy should rely on uniform principles, in particular for the “conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property,” as well as measures to protect trade.

Also, the EU Court of Justice might be conferred jurisdiction by the Council in disputes relating to the “application of acts adopted on the basis of the treaties which create European intellectual property rights.” The Council would be acting in accordance with a special legislative procedure and after consultation with the European Parliament. These provisions should enter into force after “their approval by the member states in accordance with their respective constitutional requirements,” according to Article 262, under Section 5 of the consolidated version of the treaty, on the Court of Justice of the European Union.