Today, the CJEU has delivered its judgments on the challenge by Spain to two Regulations of the Unitary Patent Package (Regulation EU 1257/2012 creating the Unitary Patent and Regulation EU 1260/2012 dealing with the translation regime). In its decision, the CJEU follows the opinion of Advocate General (AG) Bot, dismissing the actions of Spain in their entirety and thereby clearing the way for the Unitary Patent and its accompanying translation agreements.
The Unitary Patent is intended to be a form of single patent available to cover all the EU member states that have participated in Enhanced Cooperation and have ratified the Unified Patent Court ("UPC") Agreement. Unitary Patents will be enforceable and revocable in all these territories simultaneously in the UPC. However, Spain has not participated in Enhanced Cooperation and has not signed the UPC Agreement. Spain had before unsuccessfully tried to challenge the Enhanced Cooperation mechanism (cases C 274/11 and C 295/11); with its present challenges, filed on 22 March 2013 (C-146-13 and C-147/13), it has sought the nullification of Regulation 1257/2012 (creating the Unitary Patent) and Regulation 1260/2012 (the translation regulation).
In his opinion rendered on 18 November 2014, AG Bot has advised the CJEU to reject all pleas raised by the government of Spain as unfounded. With its present decision, the CJEU concurs with the findings of the AG:
Challenge to Regulation (EU) 1257/2012 (Unitary Patent Regulation):
- No breach of the rule of law: The CJEU rejects Spain’s argument that the UP Regulation concerns a right granted by the European Patent Office (“EPO”), whose acts are not subject to judicial review, arguing that the grant of European patents will still be exclusively governed by the EPC. The Regulation does not aim at even partially delimiting the conditions for the grant of European patents, nor does it incorporate the procedure for granting European Patents laid down by the EPC into EU law. It merely sets out the conditions under which a European patent previously granted by the EPO may benefit from unitary effect while providing a definition of that unitary effect.
- Art. 118 TFEU is an adequate legal basis: Because – in contrast to what is claimed by the Spanish government – the unitary patent protection is apt to prevent divergences in patent protection in the participating Member States and, accordingly, provides uniform protection.
- No infringement of Art. 291 (2) TFEU or the principles laid down in the Meroni case law: The CJEU holds that by delegating the administration of the compensation scheme to the participating Member States or the EPO, the EU legislature did not delegate any implementing powers which are exclusively its own under EU law. As the EU is not a party to the EPC these tasks inevitably fall to the participating Members States and not to the Commission or the Council.
Challenge to Regulation (EU) 1260/2012 (Translation Regulation)
- No infringement of the principle of non-discrimination: The Court argues that the differentiation between the official languages of the EU in the Translation Regulation is proportionate to reach the legitimate objective of creating a uniform and simple translation regime for the Unitary Patent, so as to facilitate access to patent protection especially for SMEs. In particular, the Translation Regulation maintains the necessary balance between the interests of applicants for unitary patents and those of other economic operators by introducing a number of mechanisms (e.g. compensation scheme for the reimbursement of translation costs, right to a full translation for alleged infringers etc.). The Court finds that Art. 118 TFEU is a correct legal basis for the Regulation.
By upholding the Regulations, the CJEU has removed all major (legal) obstacles for the creation of the Unitary Patent and the Unitary Patent Court. The Unitary Patent Package can now come into force as planned, i.e. after the UPC Agreement has received the thirteen ratifications required. At present, the UPC Agreement has already been ratified by six member states, including Austria, Belgium, Denmark, France, Malta and Sweden.