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  1989 Luxembourg Agreement relating to Community Patents (89/695/EEC)
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5/9/2003


PREAMBLE

THE HIGH CONTRACTING PARTIES to the Treaty establishing the European Economic Community,
DESIRING to give unitary and autonomous effect to European patents granted in respect of their territories under the Convention on the Grant of European Patents of 5 October 1973;
ANXIOUS to establish a Community patent system which contributes to the attainment of the objectives of the Treaty establishing the European Economic Community and in particular to the elimination within the Community of the distortion of competition which may result from the territorial aspect of national protection rights;
CONSIDERING that one of the fundamental objectives of the Treaty establishing the European Economic Community is the abolition of obstacles to the free movement of goods;
CONSIDERING that one of the most suitable means of ensuring that this objective will be achieved, as regards the free movement of goods protected by patents, is the creation of a Community patent system;
CONSIDERING that the creation of such a Community patent system is therefore inseparable from the attainment of the objectives of the Treaty and thus linked with the Community legal order;
CONSIDERING that it is necessary for these purposes for the High Contracting Parties to conclude an Agreement which constitutes a special agreement within the meaning of Article 142 of the Convention on the Grant of European Patents, a regional patent treaty within the meaning of Article 45 (1) of the Patent Cooperation Treaty of 19 June 1970, and a special agreement within the meaning of Article 19 of the Convention for the Protection of Industrial Property, signed in Paris on 20 March 1883 and last revised on 14 July 1967;
CONSIDERING that the achievement of a common market which offers conditions similar to those of a national market necessitates the creation of legal instruments which enable enterprises to adapt their production and distribution activities to European scales;
CONSIDERING that the problem of dealing effectively with actions relating to Community patents and the problems arising from the separation of jurisdiction created by the Community Patent Convention as signed at Luxembourg on 15 December 1975 in respect of infringement and validity of Community patents will best be solved by giving jurisdiction in actions for infringement of a Community patent to national courts of first instance designated as Community patent courts which can at the same time consider the validity of the patent in suit and, where necessary, amend or revoke it; and that an appeal to national courts of second instance designated as Community patent courts should lie from judgments of these courts;
CONSIDERING, however, that uniform application of the law on infringement and validity of Community patents requires the setting up of a Community patent appeal court common to the Contracting States (Common Appeal Court) to hear on appeal referrals on questions of infringement and validity from the Community patent courts of second instance;
CONSIDERING that the same requirement of uniform application of the law leads to conferral upon the Common Appeal Court of jurisdiction to decide on appeals from the Revocation Divisions and the Patent Administration Division of the European Patent Office, thus replacing the Revocation Boards provided for in the Community Patent Convention as signed on 15 December 1975;
CONSIDERING that it is essential that the application of this Agreement must not operate against the application of the provisions of the Treaty establishing the European Economic Community and that the Court of Justice of the European Communities must be able to ensure the uniformity of the Community legal order;
ANXIOUS to promote the completion of the internal market and the establishment of a European technological community by means of the Community patent;
CONVINCED therefore that the conclusion of this Agreement is necessary to facilitate the achievement of the tasks of the European Economic Community,
HAVE AGREED AS FOLLOWS:


Article 1 - Contents of the Agreement
1. The Convention for the European Patent for the common market signed at Luxembourg on 15 December 1975, hereinafter referred to as ´the Community Patent Convention´, as amended by this Agreement, shall be annexed hereto.
2. The Community Patent Convention shall be supplemented by the following Protocols annexed to this Agreement:
- Protocol on the Settlement of Litigation concerning the Infringement and Validity of Community Patents, hereinafter referred to as ´the Protocol on Litigation´,
- Protocol on Privileges and Immunities of the Common Appeal Court,
- Protocol on the Statute of the Common Appeal Court.
3. The Annexes to this Agreement shall form an integral part thereof.
4. On entry into force of this Agreement, it shall replace the Community Patent Convention in the form signed at Luxembourg on 15 December 1975.


Article 2 - Relationship with the Community legal order
1. N provision of this Agreement may be invoked against the application of the Treaty establishing the European Economic Community.
2. In order to ensure the uniformity of the Community legal order, the Common Appeal Court established by the Protocol on Litigation shall request the Court of Justice of the European Communities to give a preliminary ruling in accordance with Article 177 of the Treaty establishing the European Economic Community whenever there is a risk of an interpretation of this Agreement being inconsistent with that Treaty.
3. Where a Member State or the Commission of the European Communities considers that a decision of the Common Appeal Court which closes the procedure before it does not comply with the principle stated in the foregoing paragraphs, it may request the Court of Justice of the European Communities to give a ruling. The ruling given by the Court of Justice in response to such request shall not affect the decision by the Common Appeal Court which gave rise to the request. The Registrar of the Court of Justice shall give notice of the request to the Member States, to the Council and, if the request is made by a Member State, the Commission of the European Communities; they shall then be entitled within two months of the notification to submit statements of case or written observations to the Court. N fees shall be levied or any costs or expenses awarded in respect of the proceedings provided for in this paragraph.


Article 3 - Interpretation of provisions on jurisdiction
1. The Court of Justice of the European Communities shall have jurisdiction to give preliminary rulings concerning the interpretation of the provisions on jurisdiction applicable to actions relating to Community patents brought before national courts, contained in Part VI, Chapter I, of the Community Patent Convention and in the Protocol on Litigation.
2. The following courts shall have the power to request the Court of Justice to give a preliminary ruling on any question of interpretation as defined in paragraph 1:
(a) - in Belgium: la Cour de cassation (het Hof van Cassatie) and le Conseil d´État (de Raad van State),
- in Denmark: Hoejesteret,
- in the Federal Republic of Germany: die obersten Gerichtshoefe des Bundes,
- in Greece: [...],
- in Spain: el Tribunal supremo,
- in France: la Cour de cassation and le Conseil d´État,
- in Ireland: an Chúirt Uachtarach (the Supreme Court),
- in Italy: la Corte suprema di cassazione,
- in Luxembourg: la Cour supérieure de justice when sitting as Cour de cassation,
- in the Netherlands: de Hoge Raad,
- in Portugal: o Supremo Tribunal de Justiça,
- in the United Kingdom: the House of Lords;
(b) the courts of the Contracting States when ruling on appeals.
3. Where such a question is raised in a case before one of the courts listed in paragraph 2 (a), that court must, if it considers that a decision on the question is necessary to enable it to give a judgment, request the Court of Justice to give a ruling thereon.
4. Where such a question is raised before one of the courts referred to in paragraph 2 (b), that court may, under the conditions laid down in paragraph 1, request the Court of Justice to give a ruling thereon.


Article 4 - Rules of Procedure of the Court of Justice
1. The Protocol on the Statute of the Court of Justice of the European Economic Community and the Rules of Procedure of the Court of Justice shall apply to any proceedings referred to in Articles 2 and 3.
2. The Rules of Procedure shall be adapted and supplemented, as necessary, in conformity with Article 188 of the Treaty establishing the European Economic Community.


Article 5 - Jurisdiction of the Common Appeal Court
Subject to Articles 2 and 3, the Common Appeal Court shall ensure uniform interpretation and application of this Agreement and of the provisions enacted in implementation thereof, to the extent to which these are not national provisions.


Article 6 - Signing - Ratification
1. This Agreement shall be open until 21 December 1989 for signing by the States parties to the Treaty establishing the European Economic Community.
2. This Agreement shall be subject to ratification by the 12 signatory States. Instruments of ratification shall be deposited with the Secretary-General of the Council of the European Communities.


Article 7 - Accession
1. This Agreement shall be open to accession by States becoming Member States of the European Economic Community.
2. Instruments of accession to this Agreement shall be deposited with the Secretary-General of the Council of the European Communities. Accession shall take effect on the first day of the third month following the deposit of the instrument of accession, provided that the ratification by the State concerned of the Convention on the Grant of European Patents, hereinafter referred to as ´the European Patent Convention´, or its accession thereto has become effective.
3. The signatory States hereby recognize that any State which becomes a member of the European Economic Community must accede to this Agreement.
4. A special agreement may be concluded between the Contracting States and the acceding State to determine the details of application of this Agreement necessitated by the accession of that State.


Article 8 - Participation of third States
The Council of the European Communities may, acting by a unanimous decision, invite a State party to the European Patent Convention which forms a customs union or a free trade area with the European Economic Community to enter into negotiations with a view to enabling that third State to participate in this Agreement on the basis of a special agreement, to be concluded between the Contracting States to this Agreement and the third State concerned, determining the conditions and details for applying this Agreement to that State.


Article 9 - Application to the sea and submarine areas
This Agreement shall apply to the sea and submarine areas adjacent to a territory to which the Agreement applies in which one of the Contracting States exercises sovereign rights or jurisdiction in accordance with international law.


Article 10 - Entry into force
To enter into force this Agreement must be ratified by the 12 signatory States. It shall enter into force on the first day of the third month following the deposit of the instrument of ratification by the last such State to take this step. However, if the European Patent Convention enters into force on a subsequent date in respect of any signatory State to this Agreement, the latter shall enter into force on the latest subsequent date.


Article 11 - Observers
As long as this Agreement has not entered into force in respect of a Member State of the European Economic Community which is not a signatory to this Agreement, that State may take part as an observer in the Select Committee of the Administrative Council of the European Patent Organization, hereinafter referred to as ´the Select Committee´ and in the Administrative Committee of the Common Appeal Court, hereinafter referred to as ´the Administrative Committee´, and may appoint a representative and an alternate representative to each of these bodies for this purpose.


Article 12 - Duration of the Agreement
This Agreement is concluded for an unlimited period.


Article 13 - Revision
If a majority of the Member States of the European Economic Community requests the revision of this Agreement, a revision conference shall be convened by the President of the Council of the European Communities. The conference shall be prepared by the Select Committee or by the Administrative Committee, each acting within the limits of its own competence.


Article 14 - Disputes between Contracting States
1. Any dispute between Contracting States concerning the interpretation or application of this Agreement which is not settled by negotiation shall be submitted, at the request of one of the States concerned, to the Select Committee or to the Administrative Committee as the case may be. The body to which the dispute is submitted shall endeavour to bring about agreement between the States concerned.
2. If agreement is not reached within six months from the date when the Select Committee or the Administrative Committee was seised of the dispute, any one of the States concerned may submit the dispute to the Court of Justice of the European Communities.
3. If the Court of Justice finds that a Contracting State has failed to fulfil an obligation under this Agreement, that State shall be required to take the necessary measures to comply with the judgment of the Court of Justice.


Article 15 - Definition
For the purposes of this Agreement ´Contracting State´ means a State for which the Agreement is in force.


Article 16 - Original of the Agreement
This Agreement, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese and Spanish languages, all 10 texts being equally authentic, shall be deposited in the archives of the General Secretariat of the Council of the European Communities. The Secretary-General shall transmit a certified copy to the Government of each Member State of the European Economic Community.


Article 17 - Notification
The Secretary-General of the Council of the European Communities shall notify the Member States of the European Community of:
(a) the deposit of each instrument of ratification and accession;
(b) the date of entry into force of this Agreement;
(c) any reservation or withdrawal of reservation pursuant to Article 83 of the Community Patent Convention;
(d) any notification received pursuant to Article 1 (2) and (3) of the Protocol on Litigation.

En fe de lo cual los plenipotenciarios abajo firmantes han suscrito el presente Acuerdo.
Til bekraeftelse heraf har undertegnede befuldmaegtigede underskrevet denne aftale.
Zu Urkund dessen haben die unterzeichneten Bevollmaechtigten ihre Unterschrift unter diese Vereinbarung gesetzt.
[...].
In witness whereof, the undersigned Plenipotentiaries have affixed their signatures below this Agreement.
En foi de quoi, les plénipotentiaires soussignés ont apposé leurs signatures au bas du présent accord.
Dá fhianú sin, chuir na Lánchumhachtaigh thíos-sínithe a lámh leis an gComhaontú seo.
In fede di che, i plenipotenziari sottoscritti hanno apposto le foro firme in calce al presente accordo.
Ten blijke waarvan de ondergetekende gevolmachtigden hun handtekening onder dit Akkoord hebben gesteld.
Em fé do que, os plenipotenciários abaixo-assinados apuseram as suas assinaturas no final do presente Acordo.
Hecho en Luxemburgo, el quince de diciembre de mil novecientos ochenta y nueve.
Udfaerdiget i Luxembourg, den femtende december nitten hundrede og niogfirs.
Geschehen zu Luxemburg am fuenfzehnten Dezember neunzehnhundertneunundachtzig.
[...].
Done at Luxembourg on the fifteenth day of December in the year one thousand nine hundred and eighty-nine.
Fait à Luxembourg, le quinze décembre mil neuf cent quatre-vingt-neuf.
Arna dhéanamh i Lucsamburg, an cúigiú lá déag de mhí na Nollag míle naoi gcéad ochtó a naoi.
Fatto a Lussemburgo, addì quindici dicembre millenovecentottantanove.
Gedaan te Luxemburg, de vijftiende december negentienhonderd negenentachtig.
Feito no Luxemburgo, em quinze de Dezembro de mil novecentos e oitenta e nove.
Pour Sa Majesté le roi des Belges
Voor Zijne Majesteit de Koning der Belgen
For Hendes Majestaet Danmarks Dronning
Fuer den Praesidenten der Bundesrepublik Deutschland
[...]
Por Su Majestad el Rey de España
Pour le président de la République française
For the President of Ireland
Uachtarán na hÉireann
Per il Presidente della Repubblica italiana
Pour Son Altesse Royale le grand-duc de Luxembourg
Voor Hare Majesteit de Koningin der Nederlanden
Pelo Presidente da República Portuguesa
For Her Majesty the Queen of the United Kingdom of Great Britain and Northern Ireland





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