The Rt Hon Sir Francis Jacobs KCMG QC and former ECJ Advocate General was the surprise guest speaker at the Hogarth Chambers Summer IP Seminar on Wednesday 15th July. Quietly spoken and urbane, his manner reflected the lugubrious nature of ECJ proceedings that are now seriously frustrating the IP community. It seems that the ECJ, or at least its Advocate Generals, can be quietly frustrated too. Jacobs spoke of being minded on one occasion to invoke Lewis Carroll and the Hunting of the Snark and quote that “what I tell you three times is true”.
The admirable role of the ECJ is to interpret European law in a manner that will enable all national courts to apply it consistently.
Its procedure is relatively straightforward. References may be made by any national court or tribunal and must be made by the highest where doubts arise. The Reference is translated into all the national languages and circulated to all member states. There is just one cycle of written submissions, a short oral proceeding, an Advocate General’s opinion and a judgment. In the 70s it used to take 7 months but that rose to two years and is now down to 18 months but these are averages. Jacobs felt that a target of about 12 months would be right. The ECJ has the power to reformulate the question. Clearly a delight for any lawyer, but a particular joy for an Advocate General. Jacobs gently mocked some questions that read like extremely detailed exam papers with questions. For example: lf the answer to 4.3.a is no then does this affect the opinion on 3.7.b? (my notes may not be accurate here but you get the idea). Apparently A-G's dislike being set such tests.
Procedures were simplified to accommodate the expected increase in workload from the new member states - a triumph of diplomacy of which Jacobs seemed proud as, at that time, changes had to be unanimous. In particular some references can now be dealt with summarily, but that is still relatively time consuming and resource hungry in the early stages, though judge time is saved. However, the workload seems to have remained stable within the range of 210-250 references annually and around 540 cases in all taking into account appeals from the CFI and other sources. Is this because the influx of unclear new law is balanced by the light being cast by the Court? Within the IP field it seems to me that it just get murkier.
The delay it seems is mainly due to the need to translate the references. There is no prescribed form. Since judges are encouraged to submit answers with their questions, it is not surprising that there are some long treatises prepared that may be a challenge to the limited translation resources in Maltese, say. Jacobs singled out the UK Employment Tribunals for their ability to submit appropriate references and Laddie's references on pharmaceutical labelling - although apparently complete with answers - as the most laboured.
Jacobs emphasised that there were sanctions that could be taken if the national courts failed to make references. These might sound in damages, presumably in claims between the parties, but the ultimate sanctions can be taken by the Commission in enforcement action against the member states. I suspect he was warning us, ever so politely, that though should we be tempted to rebel, our hands were tied and we had no choice. The compulsion to refer was where Jacobs began his presentation so you can see that this is a personal interpretation.
He did, however, end by describing the Green Light procedure. This works if you have answers with the questions to which a green light can be given quickly, though presumably still only after all that translation work. There is an obvious tension here with the dreaded reformulation power. A green light seems to imply that the referring court was misguided into thinking it needed to make a reference, though it may be a quick way for the ECJ to point the way when there are two clear potential routes the law could take. Maybe it will work.
He does not believe that specialist sections would work. Each member state sends one judge and the ECJ gets what it is given. Specialism, I suppose, would leave IP law with a subset of the judges and therefore unduly influenced by a geographical part of the EU.
Clearly being saddled with a reference is a disaster to any entity who sought recourse to the court to disentangle his IP problem with reasonable speed. Head for ADR if your barrister says that it’s an area where the law is not clear. The Tower of Babel that the ECJ has become is only for those whose strategy desires delay. Authoritative this note is not. If you want statistics that are accurate look elsewhere but do add a comment. All errors are of course my own and probably due to lack of attention to our illustrious speaker, who has also written a book.