Dutch Minister trumps Court of Appeal ruling, reasserts EPO immunity

Is this the EPO ...?

"Opstelten: uitspraak rechter geldt niet voor Europese instelling" is the title of an article in this morning's edition of Dutch newspaper de Volkskrant, which brings tidings of the latest twist in the battle over the European Patent Office's governance. You can read it here in the original Dutch or run it through the online translation service of your choice.

The bottom line, as summarised in an EPO staff communication, is this:

"The president has just received an official notification from the Dutch government which has decided to undertake some first actions to ensure that the judgement is not executable". 

The gist of the article in de Volkskrant is that the Dutch Minister of Justice Ivo Opstelten has made a decision on the basis of the EPO's immunity from execution of court orders under international law, an immunity which the Court had previously lifted.  Whether the minister is correct, either in terms of law or in terms of policy, appears to be open to question.

This moggy, having struggled to comprehend the English version of the article is grateful to Bart van Wezenbeek (European Patent Attorney and Senior Associate, V.O.) for the following:

I have not been able to find the official statement of Opstelten and it is also unclear whether Opstelten would have said this as an announcement from the government, from the ministry or on personal title in an interview. In the news item two legal scholars are quoted who criticize the statement: Hans Engels is quoted to say that “Legally he may be correct, but in view of our constitutional system, this appears to be very strange. It is remarkable that this kind of powers reside with a minister. And I do not express myself in a positive way here”. Further, prof. Cedric Reyngaert (Univ. Utrecht) is quoted: “In fact he is eroding the power of the court. International organization will continue to put themselves above the law, although that already is a problem. Opstelten finds his basis in some law of the ’70s. That should be applied dynamically, but he is taking a very conservative view”.

In a further development, this moggy understands that the President and the head of the Administrative Council have invited the Enlarged Board and the Association of Members of the Boards of Appeal (AMBA) committee to meet on 10 March.  She very much hopes that something good and constructive will come from this but fears that, as so often happens, hope will not triumph over experience.

At this point the opinions of the patent fraternity become less helpful than those of specialists in international law and Dutch constitutional law. If readers can ask any of them for an expert input, that would be most helpful.