After Brüstle: EU accession to the ECHR and the future of European patent law

The aim of the Directive on Biotechnological Inventions 1998¹ was to harmonize national patent laws in order to bolster Europe's competitiveness in fields involving biotechnological applications. From the beginning, the Directive was met with a barrage of opposition from politicians, political lobbies, religious organizations and academics who called for the need to ensure that ethical principles would not be sacrificed on the altar of commerce and market forces.² Human rights were specifically invoked to justify the importation of moral exclusions into the Directive.³ Yet, little thought was given at the time to the implications and the potential tensions created by the lack of integration between the European Union (EU) and the Council of Europe (CoE) legal orders and courts. This paper analyses and evaluates how the historical tensions are manifested in the paradoxical judgment of the Grand Chamber of the European Court of Justice (CJEU) in the Brüstle case.⁴ It is suggested that the CJEU ruling represents a disproportionate interference with the autonomy of Member States and is inconsistent with the degree of autonomy vested in Member States by the European Convention legal order. More generally, the paper uses the Brüstle case as a lens through which to analyse and evaluate the potential impact of the current proposal for the EU's accession to the European Convention on Human Rights (ECHR) on the resolution of emerging tensions.