In T 276/99 the board noted that under the EC Treaty referrals to the Court of Justice of the European Communities (now Court of Justice of the European Union) were governed by Art. 234 ECT (now Art. 267 TFEU). 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 Communities.

As to the applicability of the TRIPS Agreement in proceedings before the EPO, see chapter III.H.2. "Interpretation of the EPC affected by TRIPS Agreement".