Context:
- ​​Last February, the European Commission’s (EC) proposal for a regulation on standard-essential patents (SEPs) was dropped (February 11, 2025 ip fray article). This, according to EC Executive Vice President for Tech Sovereignty Henna Virkkunen, was because Europe “needs less bureaucracy and more space for innovation and entrepreneurship” and the EC wants to “cut the red tape and work smarter.” Then, in July, that decision was finalized (July 31, 2025 ip fray article). The European Parliament (EP) had overwhelmingly supported the bill, but it was going nowhere in the EU Council.
- Several Members of the EP (MEPs) were disgruntled enough to take the initiative to call for interinstitutional litigation: they wanted the EP to sue the EC over this decision. In November, the EP held a plenary vote. 334 MEPs voted in favor, 294 against, and 11 abstained (November 25, 2025 ip fray article). That means the EP v. EC lawsuit was supported by 53% of the votes cast (subtracting abstentions), or 46% of all MEPs.
What’s new: A summary of the suit filed by the EP against the EC in the Court of Justice of the European Union (CJEU) has been published (January 5, 2026 action published).
Direct impact and wider ramifications: While it is helpful to understand more about the reasoning behind the EP’s case, there will likely not be a decision before sometime in 2027, at the earliest. For now, this is unlikely to have any effects on the EU’s SEP proposal. Even if the EC were to lose, the proposal would still not be ready for adoption by the EU Council.
The grounds are more about the general principle of the EC’s actions, rather than the proposed SEP regulation itself, and they include:
- The contested decision breaches the principles of conferral of powers and of institutional balance: by deciding to withdraw the proposal at issue, the EC prematurely brought the legislative procedure to an end without legitimate grounds supported by cogent evidence and arguments for doing so, and thus impermissibly encroached upon the legislative powers of the EP and of the Council.
- A violation of the duty of sincere cooperation between the institutions as laid down in Article 13(2) TEU: the EC breached the duty of mutual sincere cooperation in two ways:
- First, by not having due regard to the concerns of the EP as co-legislator
- Second, by failing to clarify the reasons underlying the decision to withdraw the legislative proposal at issue.