Today, the ECJ dismissed the complaints of Spain (C-274/11) and Italy (C-295/11) against the Council of the European Union with a view to the Unitary Patent, concurring with the Opinion of Advocate General Bot, rendered on 25 September 2012.

The complaints of Spain and Italy were primarily directed against the decision of the Council of the European Union to authorize an enhanced cooperation of some member states in the area of the creation of unitary patent protection (OJ 2001 L 76, p. 53). Enhanced cooperation is governed by Art. 118, resp. Art. 329 of the Treaty on the Functioning of the European Union (TFEU). It is – in a nutshell – a procedure that allows that certain projects are realized by certain member states, if (unanimous) agreement on this project cannot be achieved with all member states. Under enhanced cooperation, the member states pursuing the joint project may use the institutions of the European Union (e.g. Parliament, Council and Commission). Accordingly, enhanced cooperation is a mechanism to avoid that member states pursue certain projects on their own (i.e. outside the EU framework) and ensures that a deadlock on development in the EU with an ever growing number of member states with different interests is avoided. In order to assure that no segmentation of the common market takes place between the member states participating in the enhanced cooperation and member states not participating, it is a requirement of enhanced cooperation that any member state not participating is free to join the cooperation at any time.

In its complaints, Spain and Italy raised some formal and material objections to the appropriateness of enhanced cooperation for creating a unitary patent protection. The main points of attack were: (i) alleged lacking competence of the Council to authorize enhanced cooperation, (ii) an alleged misuse of power of the Council, (iii) an alleged misuse of the concept that enhanced cooperation should apply as a last resort, (iv) an alleged separation of the common market/destruction of integration and (v) an alleged disregard of the judicial system of the Union. The ECJ, concurring with the previous Opinion of Attorney General Bot, dismisses all of these attacks. The particular reasoning can be found on the ECJ website:

Comment of TW

With the present decision, the ECJ has approved the formal side of enhanced cooperation for the creation of unitary patent protection. Meanwhile, Spain has filed two further complaints (C-146/13 and C-147/13) on March 22, 2013 – details of which are not yet publicly available. These complaints seem to be focused on the material side of enhanced cooperation, i.e. if the present Regulations 1257/12 (creation of unitary patent protection) and 1260/12 (translation regime) meet the requirements of enhanced cooperation. In particular in view of the Regulation 1257/12, this could be a critical issue, since this Regulation does, from a material point of view, not “create a unitary patent”, as may be a prerequisite of enhanced cooperation, but rather refers to already existing national laws of the Member States in this regard.