WRITTEN QUESTION P-2825/00

by Erik Meijer (GUE/NGL) to the Commission

(4 September 2000)

Subject: Postponement of national implementing provisions with regard to Directive 98/44/EC on the granting of patents on living organisms until the Court of Justice has ruled on an action to have it declared null and void

1. Is the Commission aware that the national parliaments of various Member States (the Netherlands, France, Germany and Italy) have expressed serious concerns about the implementation of Directive 98/44/EC(1) on the legal protection of biotechnological inventions, with particular regard to those sections which would enable undertakings to acquire ownership rights in respect of genetically modified plants and animals, and that, on 14 June 2000, the Netherlands Second Chamber decided to ask the President of the European Court of Justice immediately to suspend implementation of the Directive until such time as the Court had given its ruling on an earlier action to have it declared null and void, an action supported by the Italian Republic?

2. Given that, on 25 July 2000, the President of the Court rejected the request submitted by the Netherlands and Italy, what is the Commission's view of the implications if, prior to the final Court ruling expected in 2002, patents were granted to undertakings on the basis of national implementing provisions and such patents were subsequently declared null and void by the Court? In that event, would the national government be liable for any claims for compensation, or would such claims have to be settled by the European Union?

3. What possibilities do the Member States have to prevent patents from being granted before the Court has delivered its final ruling so that there would be no possibility of claims for compensation arising?

4. What possibilities do the Member States have of postponing the introduction of the implementing provisions required of them until the Court of Justice has ruled on the action to have the Directive declared null and void, and what possibilities may be granted to them in this particular instance, should they not be authorised to postpone that introduction? What is the Commission doing to broaden the possibility of postponement, where necessary?

(1) OJ L 213, 30.7.1998, p. 21.

Answer given by Mr Prodi on behalf of the Commission

(4 October 2000)

1. The Commission is aware that concern has been expressed about certain aspects of Directive 98/44/EC of the Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions(1) (the directive). This, as the Honourable Member mentions, has led the Netherlands to bring an action before the Court of justice seeking annulment of the directive. The Netherlands is supported in this action by Italy. It is also true that, more recently, the Netherlands asked the Court to suspend implementation of the directive pending its decision in the main case. On 25 July 2000, this request for interim measures was rejected by the President of the Court.

2. One of the grounds for rejection of the Netherlands' request was the fact that, given the time generally taken by national patent offices for examining patent applications, it was unlikely that any patents would be granted under the directive before the date of the Court's judgment in the main case referred to above. The President of the Court also noted that the Netherlands has legal mechanisms which it could use when granting such patents in order to prevent any damage being caused. Thus, conditions could be attached to the grant which would make it clear that its validity depended on the legality of the directive being upheld. It therefore seems vary unlikely that any question of claims for compensation could arise.

3. and 4. Member States are under an obligation to implement the directive on time. They cannot therefore postpone the introduction of the necessary legislation. However, as noted above, it normally takes national patent offices quite some time to examine patent applications. The Court's judgment in the main case is therefore likely to intervene before any patents are finally granted under the directive. Moreover, in terms of Community law, it is open to any Member State to make the grant of such a patent conditional on the validity of the directive being upheld.

(1) OJ L 213, 30.7.1998.