An International Guide to
Patent Case Management for Judges

13.5.2 Rules of interpretation of EU law

EU law is directly integrated into the French legal system and is applied and interpreted⁴²⁷ by French courts in accordance with the decisions of the CJEU, the only body that can declare it invalid.⁴²⁸

Integrating EU law creates an “ever closer union among the peoples of Europe”⁴²⁹ and requires specific application rules based on its primacy, loyal application and the preliminary rulings procedure.

13.5.2.1 Primacy of EU law

Like any international treaty, EU law takes precedence over national laws and regulations.⁴³⁰ This means that, in the event of a conflict, national laws and regulations must be set aside in order to apply EU law. Their creation must also be prevented if they are contrary to EU law.⁴³¹

The primacy of EU treaties and regulations is achieved through their direct applicability to individuals within their jurisdiction.⁴³² Directives create a more complex situation by leaving it up to member states to transpose them to achieve their intended outcomes.⁴³³ In a dispute between individuals, the parties must rely on domestic laws that transpose the directive; they cannot invoke its provisions directly against the opposing party, subject to the following qualifications.

Thus, judges applying the law that transposes a directive or any other EU law must apply the principles of interpretation derived from the case law of the CJEU:

• The principle of effectiveness of EU law requires judges to ensure that the application of the rules does not render the exercise of rights conferred by EU law impossible or excessively difficult in practice.⁴³⁴

• The principle of equivalence requires judges to verify that internal procedural rules, which are autonomous within each member state, do not treat situations covered by EU law less favorably than those covered by domestic law.

• The principle of consistent interpretation requires judges to interpret domestic law in light of the relevant EU law and its purpose so as to achieve the result set out therein, using all the discretion available to them.⁴³⁵

However, the principle of consistent interpretation cannot be used to set aside a domestic law that transposes a directive, even if it is contrary to the directive due to incorrect transposition. It also cannot be used to disregard fundamental rights or general principles of law. For example, it cannot be used to call into question situations that have been legally established by a final court decision or by the expiry of a statute of limitations.⁴³⁶ On the other hand, judges may refer questions for preliminary rulings to interpret EU law and ascertain whether an interpretation in conformity with EU law can be achieved.⁴³⁷

13.5.2.2 Application of loyalty in EU law

The principle of loyal application in EU law implies that the judge applying such law shall adhere to the principle of mutual recognition.⁴³⁸

Therefore, French judges must consider decisions made by authorities, including courts, in other EU member states to be equivalent to those made at the national level.

In order to demonstrate loyalty in the application of EU law, judges must refer a question of law that presents a difficulty of interpretation to the CJEU. Said referral must be made in accordance with Article 267 of the TFEU.

A preliminary ruling may only be requested from the CJEU by a body that possesses the characteristics of a court or tribunal. Such a body essentially guarantees independence and impartiality and exercises decision-making powers.

The form of preliminary questions is characterized by its flexibility, which is further elaborated upon in the context of practical recommendations for courts.⁴³⁹ These recommendations underscore the imperative for the court to specify its national law with precision, encompassing the case law applicable to the particular dispute under its jurisdiction. Furthermore, in the judgment referring the question for a preliminary ruling, the court may also highlight elements that may assist the CJEU, including relevant doctrine, and give its opinion on the interpretation of EU law. If deemed necessary, the Registry of the CJEU may request that the referring court provide clarification on specific aspects of the dispute.

A preliminary ruling requires the national court to stay proceedings pending a response from the CJEU. In exceptional circumstances, it may request that the case be dealt with under the expedited procedure, which is most often used in cases involving measures limiting individual freedom.

Individuals involved in the legal proceedings may not submit a question to the CJEU for a preliminary ruling themselves. However, the parties retain the right to propose a question and, in practice, they do so in many cases. They are welcome to seek academic advice to support their arguments on the relevance of a question.

The Court of Cassation, like any court whose decisions are not subject to appeal under domestic law, is required to refer questions for a preliminary ruling,⁴⁴⁰ unless it finds that the question is not relevant or that the question has already been interpreted by the CJEU in a manner that is “so obvious as to leave no scope for any reasonable doubt.”⁴⁴¹

A violation of EU law is considered a malfunctioning of the justice system, entitling the party who has suffered harm as a result to compensation. However, this liability is strictly assessed and requires proof of a clear violation of the applicable law or well-established case law of the CJEU.⁴⁴²