EU Patent Reform: Law-making in camera,

Article on the doubtful understanding of transparency and democracy in the legisative process for the “unitary patent” package (Published on 26/11/2013)

As it is well known, the “unitary patent” package has been adopted and now the ratification of the intergovernmental Agreement on the court system by a certain quorum of the Member States is necessary for the “unitary patent” system to enter into force. Less well known is the fact that, during the legislative process, circumstances were withheld from the public which the political front apparently regarded as dangerous for the entry into force of the “legislative package”. An exemplary case is Council document 15856/11, an opinion of the Council’s Legal Service on the compatibility of the “unitary patent” court system’s amended structure with opinion 1/09 of the European Court of Justice (CJEU). Until very recently, this document was available to the public only in extensively blackened form. Requests for complete access to the document filed on the basis of EC Regulation No 1049/2001 were repeatedly refused on the ground that this could delay the ratification process in the Member States or even call into question the entry into force of the Agreement. The document, additional parts of which were made accessible to the public shortly before the publication of this article, shows why: In it, the Legal Service notes that the structure of the adopted court system may still violate European law. A report on the strange understanding of transparency and democracy exercised in the legislative proceedings for the “unitary patent” package.

  • Download English version (article of 26/11/2013, PDF)
  • Download German version (article of 26/11/2013, PDF)


  • Link to the article “Die Brüsseler Republik” (“The Brussels Republic”) of 27/12/1999 at spiegel. de (German)
  • Council document 15856/11 of 21/10/2011, original (blackened) version (English or German, PDF)
  • Link to the article “EU Council: Something To Hide? Might Legal Opinion Turn Out To Be A Bombshell?” of 18/12/2011 at
  • Council reply of 24/01/2012 (to the initial application of 27/12/2011, English, PDF)
  • Link to the decision CJEU, C-506/08 P – MyTravel /Commission
  • Link to the decision CJEU, C-39/05 P and C-52/05 P – Turco/Council
  • Confirmatory application of 31/01/2012 (English, PDF)
  • Council reply of 09/03/2012 (to the confirmatory application of 31/01/2012, English, PDF)
  • Council document 5926/12 of 02/03/2012 (English or German, PDF)
  • Council document 7308/12 of 08/03/2012 (English or German, PDF)
  • Council reply of 13/06/2013 (to the initial application of 25/04/2013, English, PDF)
  • Council reply of 13/11/2013 (to the initial application of 22/10/2013, English, PDF)
  • Council document 15856/11 of 21/10/2011, version with newly disclosed contents (English or German, PDF)
  • Council document 15856/11 of 21/10/2011, with newly disclosed contents marked (English or German, PDF)
  • Link to the website for filing requests for access to documents of the Council of the European Union
  • “Der Zeitpunkt der Entscheidung war da” (”The time of decision had come”) – Interview by Catrin Behlau and Mathieu Klos of JUVE Rechtsmarkt with Klaus-Heiner Lehne (JUVE Rechtsmarkt 1/2013, p. 87 ff.) (English or German, PDF), published with the kind permission of JUVE GmbH

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