EU SEP Regulation battle escalates: Parliament brings Commission before EU Court

A new chapter in the EU SEP Regulation saga unfolds. The European Parliament decided to challenge the Commission’s withdrawal of the draft Regulation and will require the EU Court of Justice to weight in. 

The story so far

In 2023, the European Commission presented its Proposal for a regulatory framework on standard essential patents (SEP) licensing. The Proposal suggested, among other measures, to introduce an EU-wide SEP register and a mechanism to run random essentiality checks on patents. 

Read more: EU Commission proposes extensive framework for standard-essential patents.

The draft bill was then passed onto the co-legislators – the European Parliament and the Council of the EU – for approval. While the Parliament was quick in adopting its proposed amendments to the Commission’s text in March 2024, the Council showed little appetite for the Regulation, mainly due to diverging views on the topic among Member States. 

Read more: EU Parliament adds uncertainty around SEPs regulation proposal.

Taking stock of the situation, in February 2025 the Commission ultimately decided to withdraw the Proposal due to a “lack of foreseeable agreement”  between the Parliament and Council. 

The Parliament disagrees

After months of internal disputes, on 25 November the European Parliament voted to sue the Commission over the withdrawal of the SEP Proposal. The Parliament’s Plenary was visibly split on the vote, with just 334 votes in favor and 294 against. 

Members of the Parliament argued the Commission “abused its right to withdraw legislative proposals to circumvent the Parliament”.

What happens next?

The action for annulment of the Commission’s withdrawal has already been filed before the Court of Justice of the EU. 

If the Court decides to side with the Parliament’s claim, it may take two routes. Judges may declare the withdrawal to be void – in which case, the Proposal will be brought back for consideration by the co-legislators. 

However, the Court may also rule in favor of the Parliament without retroactively nullifying the withdrawal. With this outcome, the Commission may still be politically pressured to present a new draft bill on SEP licensing and start the legislative process from scratch. 

In the sole precedent to date, the Court affirmed the Commission’s right to withdraw a legislative proposal, against an action for annulment brought by the Council. 

In any event, it is unlikely that a decision will be reached before 2027, while the SEP licensing landscape will continue to evolve.