When Judicial Dialogue Needs Strong Institutional Commitments: The Peculiar Case of the Creation of the Unified Patent Court

Created in 2013 after a troubled and long standing debate, the Unified Patent Court (UPC) is a ‘Common Court’ of 25 EU Member States that will adjudicate on ‘classical’ European Patents and on the new European patents with unitary effect. Albeit the UPC has been established through an international agreement outside the EU legal order, it has to fully apply and respect EU Law and its primacy and it can (or, in some cases, has to) refer preliminary ruling to the ECJ. Moreover, its Member States are responsible for UPC’s action pursuant to Article 258-260 TFEU and are liable for damages occurred for infringements of EU Law made by the UPC. Therefore, the UPC has a very peculiar nature that makes it a unique construct in the field of international courts and a new actor in the EU system of judicial protection. Should its establishing Agreement enter into force, the UPC will inspire the creation of other ‘common jurisdictions’ in other fields lying on the border between international and EU Law. However, future dialogue between the ECJ and the UPC will have to deal with some controversial issues that might require some innovative approaches in ECJ jurisprudence and some caution on the part of the UPC. Despite all the efforts made to mitigate the international origin of the UPC, it remains a fundamental anomaly in the system of EU Courts, and it clearly demonstrates that the current EU system of judicial protection requires profound reconsideration.