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

Queen Mary Journal of Intellectual Property

Volumn 2, Issue 2, 2012, Pages 110-135

  Plomer, Aurora ^a  

^a UNIVERSITY OF SHEFFIELD   (United Kingdom)

Author keywords

Article 6(2)(c); Br stle; Council of Europe's Convention on Human Rights and Biomedicine; Embryonic stem cells; EU accession to the ECHR; EU Charter of Fundamental rights; EU directive on biotechnological inventions 98 44 EC; European Convention on Human Rights; Human dignity; Moral exclusions

Indexed keywords

EID: 84890552925     PISSN: 20459807     EISSN: 20459815     Source Type: Journal    
DOI: 10.4337/qmjip.2012.02.01     Document Type: Article

References (137)

1. Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions OJ L 213/13 ('the Directive').
2. See eg D Beyleveld and R Brownsword, Mice, Morality and Patents (Common Law Institute of Intellectual Property 1993).
3. R Brownsword, W Cornish and M Llewelyn, Law and Human Genetics: Regulating a Revolution (Hart 1998).
4. See Case C-377/98 Kingdom of the Netherlands v European Parliament and Council of the European Union ECR I-07079 and Preamble to the Directive: 'Whereas pursuant to Article F(2) of the Treaty on European Union, the Union is to respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law (para 43).'.
5. Case C-34/10 Oliver Brüstle v Greenpeace e. V. [2011] OJ C 362/5 Judgment of the Court (Grand Chamber) of 18th of October 2011. The case is a reference for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Germany), made by decision of 17 December 2009 on the interpretation and scope of application of Article 6(2)(c) of Directive 98/44/EC.
6. Recital 43. At the time the obligation arose under Article F(2) of the Treaty on European Union.
7. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 [2007] OJ C 306/1. The Treaty entered into force on 1 December 2009. For an overview of the constitutional significance of the Lisbon Treaty see P Craig, 'Institutions, Power and Institutional Balance,' in P Craig and G de Burca (eds), The Evolution of EU Law (2nd edn, Oxford University Press, Oxford 2011) 41-84.
8. Under Article 6(2) TEU and Protocol No. 14 to the European Convention on Human Rights: Art 59(2) ECHR: 'the EU may accede.'.
9. Article 6(1) TEU states that 'The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.' The Charter had been proclaimed a decade earlier on 7 December 2000, but was not legally binding on Member States. For an analysis of the significance of the Charter's incorporation into the Treaty see S Douglas-Scott, 'The European Union and Human Rights after the Treaty of Lisbon' (2011) 11(4) Human Rights Law Review 645.
10. The 8th Working Meeting of the CDDH Informal Working Group on the Accession of the European Union to the ECHR (CDDH-UE) with the European Commission, Draft Legal Instruments on the accession of the European Union to the ECHR. Draft instrument and explanatory report of 19th July 2011, CDDH-UE (2011) 16, Final.
11. G de Burca, 'The Evolution of EU Human Rights Law,' in P Craig and G de Burca (eds), The Evolution of EU Law (Oxford University Press, Oxford 2011) 465-95.
12. G de Burca, 'The Evolution of EU Human Rights Law,' in P Craig and G de Burca (eds), The Evolution of EU Law (Oxford University Press, Oxford 2011) 465-95.
13. G de Burca, 'The Evolution of EU Human Rights Law,' in P Craig and G de Burca (eds), The Evolution of EU Law (Oxford University Press, Oxford 2011) 465-95.
14. G de Burca, 'The Evolution of EU Human Rights Law,' in P Craig and G de Burca (eds), The Evolution of EU Law (Oxford University Press, Oxford 2011) 465-95.
15. G de Burca, 'The Evolution of EU Human Rights Law,' in P Craig and G de Burca (eds), The Evolution of EU Law (Oxford University Press, Oxford 2011) 465-95.
16. G de Burca, 'The Evolution of EU Human Rights Law,' in P Craig and G de Burca (eds), The Evolution of EU Law (Oxford University Press, Oxford 2011) 465-95.
17. G de Burca, 'The Evolution of EU Human Rights Law,' in P Craig and G de Burca (eds), The Evolution of EU Law (Oxford University Press, Oxford 2011) 465-95.
18. The 'Messina Resolution' adopted in Messina, 1-3 June 1955.
19. In a trio of cases: Case 29/60 Stauder v City of Ulm [1969] ECR 419; Case 11/70 Internationale Gesellschaft v Einfuhr und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125; Case 4/73 Nold v Commission [1974] ECR 491, following Case 6/64/Flaminio Costa v ENEL [1964] ECR 585.
20. G de Burca, 'The Evolution of EU Human Rights Law,' in P Craig and G de Burca (eds), The Evolution of EU Law (Oxford University Press, Oxford 2011) 465-95.
21. That is, through the adoption of the 'European Political Cooperation' on foreign policy in 1970, the Declaration of European identity in 1973, the Copenhagen Declaration in 1978 and the 1977 Joint Declaration of the European Parliament, Council and Commission on fundamental rights affirming case law of the CJEU. See A Williams, EU Human Rights Policies: A Study in Irony (Oxford University Press, Oxford 2004).
22. Article F(2) of the Maastricht Treaty states that 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.'.
23. Though in some scholars' view, originally mainly as 'empty rhetoric.' See the seminal article by Alston and Weiler who proposed the creation of an institutional framework with powers of oversight, monitoring and enforcement to give substance to the rhetoric: P Alston and JHH Weiler 'An "Ever Closer Union" in Need of a Human Rights Policy' (1998) 9(4) Eur J Int Law 658.
24. There is a voluminous body of literature on the adoption and evolution of the Charter. See G Di Federico, The EU Charter of Fundamental Rights (Springer, Dordrecht 2011).
25. The procedures for the conduct of negotiations and agreements with international organizations and the EU are set out in Art 218 TFEU.
26. For general discussions of the relationship between the EU and ECHR systems, see S Greer and A Williams, 'Human Rights in the Council of Europe and the EU; Towards "Individual", "Constitutional" or "Institutional" Justice?' (2009) 15(4) European Law Journal 462.
27. O De Schutter, 'The Two Europes of Human Rights: The Emerging Division of Tasks between the Council of Europe and the European Union in Promoting Human Rights in Europe' (2008) 14 CJEL 509.
28. F Van den Berghe, 'The EU and Issues of Human Rights Protection; Same Solutions to More Acute Problems?' (2010) 16 ELJ 112.
29. .
30. .
31. Vivian Reding, 'The EU's Accession to the European Convention on Human Rights: Towards a Stronger and More Coherent Protection of Rights in Europe,' speech to European Parliament, 18 March 2010: .
32. Joint statement issued in Strasbourg, 31 May 2010: Press Release-437(2010).
33. M Wilkinson, 'Who's Afraid of a European Constitution?' (2005) 30(2) European Law Review 297.
34. .
35. The terms of reference of the Ad Hoc Steering Committee (CDDH) were adopted by COE Committee of Ministers, on 26 May 2010. The CDDH was charged to draft, in collaboration with the EU, a legal instrument for accession. On the EU side, the Council of the EU adopted a Decision on 4 June 2010 authorizing the European Commission to negotiate an agreement for the EU to accede to the Convention. Throughout the process, the Commission has regularly consulted the Working Party on fundamental rights, citizens' rights and free movement of persons ('FREMP'), which had been appointed as the special committee in accordance with Article 218 (4) TFEU. On 19 July 2011, a 'final' version of the draft legal instruments on the Accession of the European Union to the ECHR was adopted: CDDH-UE (2011) 16 final.
36. Article 218 (8) TFEU, states that the agreement on accession shall be concluded unanimously by the Council. Pursuant to Article 218 (6) (a) (ii) TFEU, the Council shall obtain the consent of the European Parliament for concluding the agreement on the EU accession. Article 218 (10) TFEU provides for the European Parliament to be fully informed of all stages of the negotiations. The agreement would also have to conform separately with the ECHR requirements and approved by all 47 existing contracting parties to the ECHR in accordance with their respective constitutional requirements. Protocol No. 8 of the Treaty of Lisbon set out further requirements for the conclusion of the Accession Agreement. Protocol No. 14 to the ECHR, adopted in 2004 and entered into force on 1 June 2010, amended Article 59 of the Convention to allow the EU to accede to it.
37. Before the EU gives consent, the finalized draft of the agreement/instruments will be submitted by the Commission to the CJEU for an opinion on the compatibility with the Treaties. The European Parliament will have to approve the whole 'package' (Art 218(6)(a)(ii) TFEU) and the unanimous approval of all Member States is also required (Art 218 (8) TFEU). In addition, each Member State will have to approve the agreement in accordance with its own constitutional requirements.
38. . The draft legal instrument should be submitted to the Committee of Ministers of the Council of Europe by 30 June 2011.
39. Preamble, Draft Agreement.
40. Preamble and Article 1(2)(c).
41. In respect only of measures for which the EU has competence (Article 1(2)(c). Nothing in the Treaty shall enlarge the competence of the EU (reflecting the requirement under Article 2 of Protocol 8 of the Lisbon Treaty that the accession of the EU shall not affect its competences or the powers of its institutions): explanatory notes, III (I)(21).
42. Explanatory Report, at para I(1)(5). The note further adds that the competence of the Strasbourg court to assess the conformity of EU law with the provisions of the Convention will not prejudice the principle of the autonomous interpretation of EU law.
43. Which would require approval by each of the Members of the Council of Europe.
44. Article 1(2)b.
45. Article 1(2)c, and Article 9(2) TEU 'The Union shall accede to the [Convention]. Such accession shall not affect the Union's competences as defined in the Treaties.'.
46. Article 1(2)d.
47. Draft Explanatory Report to the Agreement on the Accession of the EU to the ECHR, para I. 3.
48. I am grateful to Gráinne de Burca for bringing this point to my attention.
49. Para 32.
50. Para 42.
51. Para 42, emphasis added.
52. Para 33.
53. Para 57.
54. See Council of the European Union, Accession of the Union to the European Convention for the Protection of Fundamental Rights and Freedoms-State of Play 18117/11, Brussels 6 December 2011 .
55. Luca de Matteis, 'Accession of the EU to the ECHR: Next Steps in the Process,' paper presented at ERA's conference on EU Accession to the ECHR, Brussels, 30 January 2012. See also Council of the European Union record of state of play on 6 December 2011 (op cit, n 52) at para 7.
56. Case 29/69 Stauder v City of Ulm [1969] ECR 419.
57. G de Burca, 'The Evolution of EU Human Rights Law,' in P Craig and G de Burca (eds), The Evolution of EU Law (Oxford University Press, Oxford 2011) 465-95.
58. Case C-377/98 Kingdom of the Netherlands v European Parliament and Council of the European Union ECR I-07079.
59. At para 197.
60. Para 43, Preamble.
61. Case C-377/98 ECR-I-07079 at para 70. For an insightful analysis of the difficulties raised by the overlap in jurisdiction and competence of the CJEU and the ECHR see C Smith and T Fetzer, 'The Uncertain Limits of the European Court of Justice's Authority: Economic Freedom versus Human Dignity' (2004) 10 Colum. J Eur L 445.
62. also, JHH Weiler, 'A Constitution for Europe? Some Hard Choices' (2002) 40 J. Common Mkt. Stud. 563, 573.
63. A Williams, 'The (Im)possibility of the European Union as a Global Human Rights Regime,' in R Brownsword (ed), Global Governance and the Quest for Justice: Volume 4, Human Rights (Hart, Oxford 2004).
64. James Thomson et al., 'Embryonic Stem Cell Lines Derived from Human Blastocysts,' (1998) 282 (5391) Science, 6 November 1145.
65. The European Patent Organization had transposed the specific exclusion into the EPC. See notice dated 1 July 1999 concerning the amendment of the implementing regulations of the European Patent Convention: [1990] O. J. E. P. O, at 437 and 573.
66. Decision of the Opposition Division of 21 July 2003 on European patent No. EP0695351 (University of Edinburgh).
67. Case G2/06. Decision of the Enlarged Board of Appeal of 25th of November 2008 rejecting the claims of WARF's European Patent Application No. 96903521. 1. O. J. E. P. O. 2009, 309.
68. Referral Xa ZR 58/073 dated 17 December 2009. For a commentary on the background to the referral, see M Grund (patent attorney for Oliver Brüstle) and S Farmer, 'The EU Stem Cell Debate: Can Patenting Stem Cell Inventions be done Morally?' (2011) 11(6) Bio-science Law Review 187.
69. Paras 71 and 72.
70. Para 37.
71. Para 38.
72. See S Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights (Council of Europe, 2000), and discussion of the legal basis of the doctrine of the margin of appreciation on the Council of Europe's website at .
73. The level of consensus may be found to vary and in some cases be altogether irrelevant. For instance, in Alekseyev v Russia (Nos 4916/07, 25924/08, 14599/09, 21 Oct. 2010) the Grand Chamber of the ECtHR found that Russia had violated the applicant's right to peaceful assembly under Article 11 in banning a gay rights activist from holding a gay parade and laying down flowers at the tomb of the unknown soldier. Whilst recognizing that a consensus had yet to emerge on matters such as civil marriage and partnerships, the Court noted that the absence of a consensus on these questions was of no relevance to the instant case 'because conferring substantive rights on homosexual persons is fundamentally different from recognizing their right to campaign for such rights.' The case is discussed by A Mowbray, 'European Court of Human Rights: May 2010-April 2011' (2011) 17(4) European Public Law 605. See also K Dzehtsiarou, 'Does Consensus Matter? Legitimacy of European Consensus in the Case Law of the ECtHR' (2011) (July) Public Law 534.
74. H Fenwick, Civil Liberties and Human Rights (Cavendish Publishing Limited, London 2005) at 34-7.
75. A Plomer, 'A Foetal Right to Life? The Case of Vo v France' (2005) 5(2) Human Rights Law Review 311.
76. Commission of the European Communities v Italian Republic Case C-456/03 ECR 2005, page I-0533.
77. As required by Article 15(1): 'Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 30 July 2000. They shall forthwith inform the Commission thereof.'.
78. Paras 32 and 45.
79. At para 51. The court acknowledged that 'according to the very words of the third paragraph of Article 249 EC, Member States may choose the form and methods for implementing directives which best ensure the result to be achieved by the directives, and that provision shows that the transposition of a directive into national law does not necessarily require legislative action in each Member State[Provided that] the legal situation arising from those principles is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts (see, inter alia, Case 29/84 Commission v Germany [1985] ECR 1661, paragraphs 22 and 23, and Case C-233/00 Commission v France, cited above, paragraph 76).'.
80. 'The Court has already held that, by requiring the Member States to protect biotechnological inventions by means of their national patent law, the Directive aims to prevent damage to the unity of the internal market which might result from the Member States' deciding unilaterally to grant or refuse such protection (Case C-377/98 Netherlands v Parliament and Council [2001] ECR I-7079, paragraph 18). In so doing, the Directive seeks, as is apparent from the fourth, fifth and sixth recitals in its preamble, to clarify the legal protection of biotechnological inventions in a context marked by differences between national laws and practices that could well become greater, in particular as a result of national case-law interpreting those laws.' (Para 58.).
81. At para 78.
82. At para 82.
83. T315/03 (Oncomouse II) O. J. E. P. O 2005, p 246. Headnote II and 10. 1.
84. See G Porter, 'The Drafting History of the European Biotechnology Directive,' in A Plomer and P Torremans (eds), Embryonic Stem Cell Patents: European Law and Ethics (Oxford University Press, Oxford 2009) 3-26.
85. C-34/10. The case for a preliminary ruling concerns the interpretation of Article 6(2)(c) of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p 13; 'the Directive').
86. The German patent was filed on 19 December 1997. It concerns isolated and purified neural precursor cells, processes for their production from embryonic stem cells and the use of neural precursor cells for the treatment of neural defects. It is claimed in the patent specification filed by Mr Brüstle that the transplantation of brain cells into the nervous system is a promising method of treatment for numerous neurological diseases.
87. On the basis of Paragraph 22(1) of the Patentgesetz transposing into German law Article 6(2)(c) of the Directive.
88. Specifically: 'In the view of the referring court, the outcome of the application for annulment depends on whether the technical teaching of the patent at issue, in so far as it concerns precursor cells obtained from human embryonic stem cells, is excluded from patentability under Paragraph 2(2), first sentence, point 3, of the Patentgesetz. The answer to that question depends in turn on the interpretation which should be given in particular to Article 6(2)(c) of the Directive' (para 20). The specific questions were: 'What is meant by the term 'human embryos' in Article 6(2)(c) of [the Directive]? (a) Does it include all stages of the development of human life, beginning with the fertilisation of the ovum, or must further requirements, such as the attainment of a certain stage of development, be satisfied? (b) Are the following organisms also included:-unfertilised human ova into which a cell nucleus from a mature human cell has been transplanted;-unfertilised human ova whose division and further development have been stimulated by parthenogenesis?' (para 23 of the Grand Chamber ruling in Brüstle).
89. The Court noted recitals 3 and 5-7 in the preamble to the Directive where it seeks, by a harmonization of the rules for the legal protection of biotechnological inventions, to remove obstacles to trade and to the smooth functioning of the internal market that are brought about by differences in national legislation and case-law between the Member States, and, thus, to encourage industrial research and development in the field of genetic engineering (see, to that effect, Netherlands v Parliament and Council, paragraphs 16 and 27) (para 27).
90. At para 21.
91. At para 21.
92. At para 25. The Grand Chamber drew attention, in particular, to Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C-287/98 Linster [2000] ECR I-6917, paragraph 43; Case C-5/08 Infopaq International [2009] ECR I-6569, paragraph 27; and Case C-467/08 Padawan [2010] ECR I-0000, paragraph 32.
93. Para 26.
94. Para 30.
95. See A Hellstadius, 'A Comparative Analysis of the Implementation of the Directive's Morality Clause,' in A Plomer and P Torremans (eds), Embryonic Stem Cell Patents: European Law and Ethics (Oxford University Press, Oxford 2009).
96. Para 34.
97. Any human ovum 'must, as soon as fertilised, be regarded as a 'human embryo' within the meaning and for the purposes of the application of Article 6(2)(c) of the Directive, since that fertilisation is such as to commence the process of development of a human being' (para 35). Furthermore, 'that classification must also apply to a non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted and a non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis, although those organisms have not, strictly speaking, been the object of fertilisation, due to the effect of the technique used to obtain them they are, as is apparent from the written observations presented to the Court, capable of commencing the process of development of a human being, just as an embryo created by fertilisation of an ovum can do so' (para 36). Finally, 'any human ovum after fertilisation, any non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted and any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis constitute a "human embryo" within the meaning of Article 6(2)(c) of the Directive' (para 38).
98. Para 49.
99. See R Isasi and B Knoppers, 'Towards Commonality? Policy Approaches to Human Embryonic Stem Cell Research in Europe,' in A Plomer and P Torremans (eds), Embryonic Stem Cell Patents: European Law and Ethics (Oxford University Press, Oxford 2009).
100. Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, OJ L 102, 7. 4. 2004, pp 48-58.
101. Regulation (EC) No 1394/2007 of the European Parliament and of the Council of 13 November 2007 on advanced therapy medicinal products and amending Directive 2001/83/EC and Regulation (EC) No 726/2004 OJ L 324, 10. 12. 2007, pp 121-37.
102. See A Plomer, 'Article 6(2)(c) of the Directive-Towards Systemic Legal Conflict,' in A Plomer and P Torremans (eds), Embryonic Stem Cell Patents: European Law and Ethics (Oxford University Press, Oxford 2009).
103. See Plomer, 'A Foetal Right to Life: The Case of Vo v France,'.
104. Vo v France [GC], no 53924/00.
105. Para 82.
106. Para 82.
107. Report of the Working Party on the Protection of the Human Embryo and Foetus: Protection of the Human Embryo In Vitro (Council of Europe 2003). Cited at paras 83 and 39.
108. Para 84.
109. That is, in France and the UK in respect of inheritance without making it a 'person' with the 'right to life' for the purposes of Article 2. para 84.
110. Para 85.
111. Evans v UK, no. 6339/05.
112. Para 46, my emphasis. Further, Evans v UK also indicates that the scope of application of Article 18 in the Convention on Human Rights and Biomedicine (1996) has to be correspondingly qualified. Article 18(1) of the ECHRB provides that: '1. Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo. 2. The creation of human embryos for research purposes is prohibited.' It is worth noting that Member States whose national laws (at the time of signature of the Treaty) permit the creation of human embryos for research purposes are allowed to enter a reservation to this effect under Article 36. The reservation is consistent with the margin of appreciation conferred on Member States on the level of protection to be granted to the embryo. Regarding Article 18(1), it is unclear from the wording of the Article whether it necessarily rules out research which has the effect of ending the life of the embryo, particularly when legislative provisions on 'spare' IVF embryos in many Member States require their destruction after a period of time if unused. Evans v UK suggests that such research may not necessarily constitute a violation of Article 2.
113. A. B. & C. v Ireland [2010] ECHR 2032.
114. In this instance the UK Patents Act.
115. A parallel principle is also found in the primary sources of EU law, particularly Article 6(3)(b) of the Treaty of the European Union (as amended by Amsterdam 1997) incorporated into Article 5 TEU. The principle of proportionality requires that any action by the Community shall not exceed what is necessary to achieve the objectives of the Treaty Article 5(4) TEU. The application of the principle is governed by the Protocol on the principles of subsidiarity and proportionality in the Treaty of Lisbon (2007) OJ C 306, 17. 12. 2007, pp 150-52.
116. For a classic discussion by senior judges and scholars see E Ellis, The Principle of Proportionality in the Laws of Europe (Hart, Oxford 1999).
117. The case law illustrating the application of the principle in relation to specific Articles, particularly Articles 8 and 11 is vast. See D Harris, M O'Boyle, E Bates and C Buckley, Harris, O'Boyle & Warbrick: the European Convention on Human Rights (Oxford University Press, Oxford 2009).
118. For an enlightening comprehensive analysis of Article 1 and its application to intellectual property rights by the Strasbourg court, see L Helfer, 'The New Innovation Frontier: Intellectual Property and the European Court of Human Rights' (2008) 49(1) Harvard International Law Journal 2.
119. For a discussion of the Court's general approach to Article 1 see T Allen, 'Compensation for Property under the European Convention on Human Rights' (2006) 28 Michigan Journal of International Law 287.
120. Grand Chamber judgment, para 62: 'The three rules are not, however, "distinct" in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see, among other authorities, James and Others v the United Kingdom, 21 February 1986, § 37, Series A no. 98, in which the Court reaffirmed some of the principles it had established in its judgment in Sporrong and Lönnroth v Sweden, 23 September 1982, § 61, Series A no. 52; see also Beyeler, cited above, § 98).'.
121. No. 12633/87, Commission decision of 4 October 1990, Decisions and Reports 66, at 70.
122. No. 38817/97, Commission decision of 9 September 1998, unreported.
123. The cases are reviewed by the Grand Chamber in Anheuser-Busch Inc. v Portugal (judgment of 11 January 2007). The court notes the Commission's conclusion that in Lenzing v UK there had been no interference with the applicant company's right to the peaceful enjoyment of its possessions, as it had been given an opportunity to set out its claims concerning the patent to a court with full jurisdiction. The Grand Chamber also noted at para 69 that in British-American Tobacco Company Ltd v the Netherlands, the Commission expressed the opinion that Article 1 of Protocol No. 1 did not apply to an application for a patent that had been rejected by the competent national authority. It stated: 'the applicant company did not succeed in obtaining an effective protection for their invention by means of a patent. Consequently, the company were denied a protected intellectual property right but were not deprived of their existing property' (see British-American Tobacco Company Ltd v the Netherlands, 20 November 1995, opinion of the Commission, §§ 71-2, Series A no. 331).
124. It is not clear whether the separate question of whether the adoption of an 'autonomous' definition did or did not fall within the scope of the Directive would be within the jurisdiction of the ECtHR-very likely not.
125. 01/12/2009; entry into force, see 12007L006 Art 6. 2.
126. EUCTD, Recital 22. The directive also recognizes the role of the opinions of the European Group on Ethics in Science and New Technologies (EGE) in evaluating all ethical aspects of biotechnology. The Directive states that EGE's opinions have been taken into account while drafting the directive (Recital 33).
127. ATR, Preamble, Article 8.
128. See Comm. Dir. 2006/86/EC, Recital 12: 'This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.'.
129. Subject to the reservations entered by some States.
130. Seemingly, largely through a process of 'mimesis' andwithout parliamentary discussions, which has been interpreted as indicative of the political pressure on these States to accede to the ECHRB as a means of acquiring a legitimizing 'imprimatur' for accession to the EU. See F Millard, 'Rights Transmission by Mimesis: the Biomedicine Convention in Central Europe' (2010) 9(4) Journal of Human Rights 427.
131. Susan Millns, 'Consolidating Bio-Rights in Europe,' in F Francioni (ed), Biotechnologies and International Human Rights (Oxford University Press, Oxford 2007) 75-84.
132. Para 18, Explanatory Report.
133. Glass v UK, no 61827/00 and Pretty v UK, no 2346/02. For a discussion of the impact of the ECHRB in these cases see A Plomer, The Law and Ethics of Medical Research: International Bioethics & Human Rights (Cavendish Publishing, London 2005).
134. S Douglas-Scott, 'The European Union and Human Rights after the Treaty of Lisbon' (2011) 11(4) Human Rights Law Review 645.
135. For a scholarly analysis of the historical and philosophical roots of 'human dignity' and the concept's indeterminate meaning in national constitutions and their judicial interpretation, see C McCrudden 'Human Dignity and Judicial Interpretation of Human Rights' (2008) 19 EJIL 655.
136. See H Schmidt, 'Whose Dignity? Resolving Ambiguities in the scope of "Human Dignity" in the Universal Declaration on Bioethics and Human Rights' (2007) 33 J Med Ethics 578.
137. Para 62; although note limitations on inter-party cases in paras 63-6.