Romanian government prepares legislation to ratify the UPC Agreement and its Protocol on Provisional Application


The Romanian government recently published its legislative programme for the period May-December 2018. The document states that the Ministry of Justice will refer to the government draft legislation aimed at ratifying the Agreement on a Unified Patent Court (UPC Agreement) and its Protocol on Provisional Application (PPA) by September 2018. Romania is a signatory Member State to both the UPC Agreement and the PPA, which as reported here it signed in September 2016, but both signatures are subject to ratification.

The Ministry of Justice has already taken steps in collaboration with the Romanian Patent Office to prepare the necessary legislation.  In June 2017, the Ministry published for consultation a draft Bill on Ratification of the Agreement on a Unified Patent Court and Ratification of the Protocol on Provisional Application of the Agreement on a Unified Patent Court, along with an Explanatory Memorandum.  According to the latter, Romania is not planning to set up a local division of the Unified Patent Court (UPC), which means the central division will be responsible for UPC actions which could otherwise have been brought in Romania.  Should Romania decide to set up a local division in the future, the document highlights that it would need to sign and ratify the Protocol on Privileges and Immunities of the UPC.

At present, 16 countries have ratified the UPC Agreement, namely Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Sweden, and the UK. As the UK, France, Germany and 10 other countries must have ratified the Agreement for it to enter into force, only Germany’s ratification is now required, although its completion of the procedure is currently on hold due to the pending constitutional complaint. The PPA allows various provisions of the UPC Agreement to come into force early, and in this ‘provisional application phase’ final preparations for the start of the UPC system, such as recruitment of judges, can be completed.  Under Article 3, the PPA will come into force the day after France, Germany, the UK and 10 other countries have ratified, or informed the depositary that they have parliamentary approval to ratify, the Agreement; and have consented to be bound by the PPA (or by the provisional application of the relevant provisions of the Agreement). So far, the UK, France and 8 other countries (Belgium, Denmark, Estonia, Finland, Italy, Luxembourg, the Netherlands and Sweden) have fulfilled those requirements, so the PPA will come into force when Germany (whose ratification of the PPA is also on hold) and two other countries have done so. Bulgaria, which has ratified the UPC Agreement, recently introduced draft legislation to ratify the PPA, and other countries are also close to fulfilling the requirements.

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