Case C-427/12 Commission v European Parliament and Council (not yet reported)

- Article 290 TFEU

- Article 291(2) TFEU

- Article 80(1) of Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products, OJ 2012 L 167/1

1. 1. The EU legislature has discretion when it decides to confer a delegated power on the Commission pursuant to Article 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU. Consequently, judicial reviewis limited tomanifest errors of assessment (official headnote)

2. 2. The Commission appears to have more liberty under Article 290 TFEU than Article 291(2) TFEU, however this may be misleading. The difference between adding “further details” (implementing act) and supplementing or amending non-essential elements to a basic act (delegated act) is difficult to gauge. Furthermore, the control foreseen to be exercised by the Member States and the Parliament and Councilmay not function as planned (author's headnote).

The Technical Board of Appeal of the European Patent Office, in case T 2221/10, held that Article 53(a) and Rule 28(c) of the European Patent Convention do not merely exclude the patentability of biotechnological inventions that make use of human embryonic stem cells obtained by de novo destruction of human embryos, but also apply to inventions which employ publicly available cell lines which were initially derived by a process resulting in the destruction of human embryos. The decision relies on the judgment of the Enlarged Board of Appeal in theWARF case, falling in line with the perspective endorsed by the Court of Justice of the European Union in Oliver Brüstle v Greenpeace.