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X.4. Referrals to the Court of Justice of the European Communities
In T 276/99 the board noted that under the EC Treaty referrals to the Court of Justice of the European Communities were governed by Art. 234 (jurisdiction of the Court of Justice to give preliminary rulings). The board pointed out that, prima facie, as the EPO boards of appeal were not a court or tribunal of an EU Member State, they did not have the status to refer a question to the Court of Justice of the European Union. Further, the question that this board had to decide did not fall under Art. 234 EC Treaty.
The board noted that the appellant seemed to have misunderstood the comments of the German Constitutional Court ("Bundesverfassungsgericht", BverfG, decision of 4.4.2001, 2 BvR 2368/99, published in GRUR 2001, 728 - 730 - German periodical). The board pointed out that the delegation referred to there was the delegation of powers to the EPO directly by the EPC contracting states who were also members of the EU, and not any delegation from the EU itself. There was also delegation of powers by the non-EU contracting states. Since the European Patent Organisation was not part of the European Union institutions, and since the delegation of powers by the non-EU contracting states was to the EPO but not to the European Union or its institutions, there was no obvious basis for referring a question to the Court of Justice of the European Communities from an EPO board of appeal.