In 2012, the Member States and the European Parliament agreed on a “patent package”, a legislative initiative consisting of two regulations and an international agreement, laying grounds for the creation of unitary patent protection in the EU. The Unified Patent Court Agreement is currently being ratified by the Member States, all except for Spain which continues to fiercely oppose this project.

Today, the advocate general of the Court of Justice of the European Union (CJEU) rendered an opinion on two appeals lodged by Spain against Regulation (EC) No 1257/2012 (enhanced cooperation) and Regulation (EC) No 1260/2012 (language arrangements).

The advocate general is of the opinion that Spain's appeals must be rejected.

1. Alleged illegality of Regulation (EC) No 1275/2012

One of Spain's main arguments to invalidate Regulation (EC) No 1275/2012 is that this regulation implements an international agreement, the Unified Patent Court Agreement, which falls outside the EU's jurisdiction and therefore it violates the principle of the primacy of European law. However, the advocate general points out that Regulation (EC) No 1275/2012 is not intended to implement an international agreement but to achieve enhanced cooperation with respect to the creation of unitary patent protection. The fact that the regulation will enter into force only once the Unified Patent Court Agreement is ratified by the Member States simply means that the connection between the regulation and the agreement is such that it would not make sense to have the regulation enter into force before the agreement.

2. Alleged discrimination against people who do not know German, French or English

The advocate general notes that there is no principle of equality of languages under EU law. He acknowledges that persons who do not speak an official language of the European Patent Office (German, French or English) will be discriminated against. Nevertheless, the advocate general takes the view that the choice of languages pursues a legitimate objective and is appropriate and proportionate having regard to the guarantees which mitigate its discriminatory effect.

It should be noted that in a significant majority of cases (approximately 80%), the Court of Justice follows the advocate general's opinion.

We look forward to the Court of Justice's ruling, which will most likely be handed down in early 2015.