Taking National Courts More Seriously? Comment on Opinion 1/09

Opinion 1/09 on the draft agreement for a unified patent litigation system reveals a degree of scepticism and distrust on part of the ECJ when it comes to the European Union’s international co-operation, especially its participation in international frameworks for dispute settlement. The Opinion not only made it far more complicated to achieve the aim of a unified patent litigation system in Europe but is also of great constitutional significance. By placing emphasis on the role that the courts of the Member States play in the Union’s legal order, the Court restricted the Member States’ room for manoeuvre when organising their own court systems. Furthermore, it made it harder for the European Union to subject itself to the jurisdiction of an international court. This article will address the wider constitutional implications of the ECJ’s Opinion and comment on the European Commission’s latest proposal to rescue the agreement at issue.