On Tuesday 16 April 2013, the Court of Justice of the European Union (CJEU) dismissed the actions brought by Spain and Italy (cases C-274/11 and C-295/11) opposing the use of the ‘enhanced cooperation’ procedure to create a Unitary Patent.

The ‘enhanced cooperation’ procedure is rarely used, but allows EU member states to establish advanced integration or cooperation, in an area within EU structures, with the involvement of some but not all EU member states. In early 2011, the EU Council authorised the use of enhanced cooperation to allow the creation of a Unitary Patent system without the participation of Italy or Spain, who had consistently blocked previous proposals.

In their CJEU actions, Spain and Italy claimed that the Council, by authorising enhanced cooperation, had circumvented the requirement of unanimity and brushed aside their objections to the Commission’s proposal on the language arrangements for the single European patent. They also argued that the decision was contrary to a provision of the Treaty on European Union, under which the Council may not authorise enhanced cooperation except ‘as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the EU as a whole’. Further, they alleged that the protection conferred by the proposed unitary patent would not be advantageous in terms of uniformity, and so of integration, compared to the situation created by the operation of the existing rules laid down by the European Patent Convention (EPC).

The CJEU rejected these arguments, stating that the Council’s decision to authorise enhanced cooperation, having found that the single European patent and its language arrangements could not be established by the EU as a whole within a reasonable period, contributed to the process of integration and was fully in accordance with the provisions of the EU Treaty. The CJEU considered it clear that the Council had carefully and impartially ascertained that the condition of ‘last resort’ had been met.

This decision will not come as a surprise, as the Advocate General’s opinion, published in December last year, was strongly in favour of dismissing the actions.

This may not be the end of the story, however, since as recently reported here, two new legal challenges (against the EU Regulations creating the Unitary system) have since been launched by Spain. The outcome of these new challenges will not be known for some time yet, although it seems unlikely that the CJEU will take a different view to that expressed in the present decision.