The EU Court of Justice published yesterday the Advocate General’s opinion (still unavailable in English) in Case C-146/13 Spain v. Parliament and Council, and C-147/13 Spain v. Council, on the validity of linguistic requirements contained in Regulation (EU) No 1257/2012, on the unitary patent protection scheme.

Spain seeks that Regulation (EU) No 1257/2012 (essential part of the Unitary Patent Package aimed at creating an enhanced patent protection cooperation scheme) is declared null and void, or alternatively that, at least, the language related provisions therein contained are nullified.

This position is consistent with Spain’s opposition (only trailed by Italy, and against the applicable principle of sincere cooperation in the eyes of the Advocate General, Mr Ives Bot) to join the enhanced cooperation system therein approved, which requires that all patent applications are translated at least into English, French, or German (the official languages of the European Patent Office).

The Spanish State’s stance for rejecting taking part in the scheme is that this would be detrimental to, and represent a competitive disadvantage for Spanish freelancers and PYMES (the Spanish acronym for small and medium size companies), who would have to bear translation costs that their European counterparts will not support (essentially, for the purposes of understanding the content of published patents).

From a technical point of view, in essence, Spain alleges that  Regulation No 1257/2012 infringes the principle of non-discrimination in connection with languages (as it provides for a different treatment to the Spanish language), and the principle of proportionality (as there is no legitimate interest grounding such a language constraint).

Mr Bot starts by rejecting the existence of such a principle of equality of languages, and claims that the choice of languages established in the Regulation pursues a legitimate objective and is appropriate and proportionate to the guarantees and aspects which attenuate its discriminatory effect. This legitimate objective would be reducing translation costs and would be aligned with the linguistic realities of the patent sector, where (i) most scientific papers are published in said languages, and (ii) most patent applications come from the countries where said languages are spoken. The principle of proportionality would also be respected, according to the Advocate General, as Regulation No 1257/2012 strives for a compensation scheme to reimburse the translation costs incurred by applicants. On top of this, Mr Bot points out that the principle of legal certainty is undeniably better safeguarded when one of the languages is authentic.

No surprise is expected in this case from the ECJ, which is likely to back the Advocate General’s position, but we will keep an eye on this and update our blog accordingly.