This controversy started when discussing the language regime that will be adopted  in the Unitary Patent  (UP) regulation. The result of such negotiations lead to the decision that the official languages of the UP would be English, French and German only. Moreover, the UP would have effect in all Member States without the execution of translations of the patent in the Member States’ official languages. In view of this decision Spain and Italy refused to participate. Nevertheless, in 2011 the European Council issued a decision allowing the EU’s 25 remaining states to use the enhanced cooperation procedure to create the UP.

However in summer 2011, both Spain and Italy requested the Court of Justice of the European Union (CJEU) to annul the Council’s decision alleging 5 arguments that can be summarized as follows:

  • council’s lack of competence to establish the enhanced cooperation
  • there was a “misuse of powers” when their language objections were ignored
  • the cooperation procedure should have been a last resort
  • infringement of four articles of two EU treaties (Article 20 (1) TEU and Articles 118, 326 and 327  of the Treaty on the Functioning of the European Union (TFEU)

The CJEU  has rejected all five arguments. According to the Court’s judgment “the TFEU authorizes the EU to create European intellectual property rights. Furthermore, the competence to adopt the language arrangements for those rights is closely bound up with their creation. As a result, those competences that fall within the sphere of the functioning of the internal market come within the ambit of competences shared between the EU and the Member States. The non-exclusiveness of those competences means that the Council is competent to authorize that enhanced cooperation”.

Particularly, the Court has found that the enhanced cooperation procedure is valid bearing in mind that the single European patent and its language arrangements could not be established by the EU as a whole within a reasonable period. Consequently the contested decision does not constitute circumvention of the requirement of unanimity or exclusion of those Member States but rather, having regard to its being impossible to reach common arrangements for the whole EU within a reasonable period, contributes to the process of integration. 

Finally, contrary to what has been claimed, the contested decision does not damage the internal market or the economic, social and territorial cohesion of the EU. What is more, according to the Court, the contested decision does not prejudice any competence, right or obligation of those Member States not participating in this enhanced cooperation.

This decision was expected since Advocate General Bot came to the same conclusions in December 2012. We should now wait to see Italy’s reaction considering that it has signed the UPC Agreement but it has refused to participate in the UP. Will it review its position and finally join this project? In the meantime, Spain has already lodged two further actions for annulment before the CJEU (Cases C-146/13 and C-147/13).