On November 18, 2014, Advocate General Yves Bot delivered his Opinion in the two cases in which Spain had challenged the Regulation establishing the Unitary Patent, and the Regulation establishing the applicable language regime (Regulation (EU) No 1257/2012 of the European Parliament and of the Council of December 17, 2012 implementing enhanced cooperation in the area of the creation of Unitary Patent protection, OJ 2012 L 361, p. 1, Council Regulation (EU) No 1260/2012 of December 17, 2012 implementing enhanced cooperation in the area of the creation of Unitary Patent protection with regard to the applicable translation arrangements, OJ 2012 L 361, p. 89. The “package” further includes the Agreement on a Unified Patent Court signed on February 29, 2013, OJ 2013 C 175, p. 1). He concludes that both actions should be dismissed as unfounded.
According to the Advocate General, the sole purpose of the regulation on the unitary patent protection is to incorporate recognition of unitary effect through a European patent already granted under the EPC. To that end the EU legislature limited itself to stating the nature, conditions for grant and effects of unitary protection, covering only the phase subsequent to the grant of the European patent without affecting the procedure regulated by the EPC. The protection conferred is regulated by the uniform implementation provisions of the regulation.
As to Spain’s claim that the content of the Agreement on the UPC affects the Union’s powers and confers on a third party the power to determine unilaterally the application of the regulation, the Advocate General takes the view that the Court does not have jurisdiction to review the content of that Agreement in an action for annulment of the regulation. He observes that the Agreement does not fall within any of the categories of acts the lawfulness of which is subject to judicial review by the Court. It is an intergovernmental agreement negotiated and signed only by certain Member States on the basis of international law. As regards the entry into force of the regulation, which depends on the entry into force of the Agreement, the Advocate General considers that this is a reasonable solution in view of the link established between the Unitary Patent Regulation and the establishment of the jurisdiction to adjudge conflicts relating to that patent.
As regards the regulation on the language arrangements, the Advocate General recalls that EU law has no principle of equality of languages. He acknowledges that persons who do not know one of the official languages of the EPO will be discriminated against and that the EU legislature has thus put in place a difference of treatment. In view of the absence of a rule requiring equality of all EU languages that discrimination is, however not contrary to primary EU law. Rather, the regulation pursues a legitimate objective and is appropriate and proportionate to the guarantees and aspects which attenuate its discriminatory effect.
The Opinion is available from the Court’s website in almost all languages of the EU, interestingly however, at the time of the writing of this Report (November 19, 2014), not in English.
A judgment of the Court of Justice should be expected within the next six months. Predictions about the outcome remain speculative, although the Opinions of the Advocate General point in the direction of a possible dismissal of Spain’s actions.