Spain's latest challenge to the legitimacy of unitary patent and the use of enhanced cooperation to establish it within the EU, has today met with a recommendation of dismissal by the Advocate General of the Court of Justice of the European Union.   If the CJEU implements the Advocate General's opinion, this will remove one of the final obstacles in the way of establishing unitary patent protection.

Business impact

  • Spain challenged two regulations forming part of the Unitary Patent Package of legislation.
  • The Advocate General expressed the view that unitary patent protection provides a genuine benefit in terms of uniformity and integration.
  • Following the Advocate General's opinion, there should be no additional translation requirements over and above those already required by the European Patent Office.
  • If the CJEU implements the Advocate General's opinion this will remove one of the final obstacles in the way of establishing unitary patent protection.

Kingdom of Spain v European Parliament and Council of the European Union, Cases C-146/13 and C-147/13, AG's Opinion, 18 November 2014.

A copy of the press release announcing the Advocate General's opinions can be found here.  At the time of writing the opinion is not yet available in English.

Background

These latest challenges by Spain follow previous unsuccessful attempts by both Spain and Italy to challenge establishment of unitary patent protection. Those earlier challenges, based on different grounds, were dismissed by the CJEU in its decision in April 2013 (C-274/11 and C-295/11). See here for our previous Newsflash on these earlier challenges.

In March 2013, Spain initiated two sets of proceedings before the CJEU seeking annulment of two regulations; the regulation on the creation of unitary patent protection (C-146/13) and the regulation governing translation arrangements (C-147/13).

See here for full details of Spain's challenges and here for a report of the hearing before the CJEU on 1 July 2014.

The Advocate General's Opinion

The Advocate General recommended that both challenges be dismissed. In making this recommendation, the Advocate General expressed the view that:

  • The contested regulation on the creation of a unitary patent only provides European patents with the additional characteristic of unitary effect which brings 'real benefit in terms of uniformity and hence of integration';
  • Spain claimed that the contested regulation requires implementation of the Agreement on a Unified Patent Court (the Agreement) and that this amounts to a delegation of power from the European Union to the Member States that are party to the Agreement. The Advocate General's view was that as an intergovernmental agreement the Agreement is not subject to judicial review by the CJEU. 
  • The establishment of the Unified Patent Court is necessary to ensure the proper functioning of the unitary patent, consistency of case law and legal certainty.
  • By refraining from ratifying the Agreement 'the participating Member States would infringe the principle of sincere co-operation in that they would be jeopardising the attainment of the Union's harmonisation and uniform protection objectives'.
  • The EU has no principle of equality of languages.
  • Limiting the translation requirements to one of the official languages of the European Patent Office (German, French and English) pursues a legitimate objective of avoiding excessively high costs and is therefore appropriate and proportionate.

Next steps

Although not binding on the CJEU, it is likely the Court will follow the recommendation and dismiss Spain's challenges. The precise timing is not known however, it is thought that the CJEU will issue its decision in early 2015.