The CJEU has dismissed the Italian and Spanish challenges regarding the legality of the "enhanced cooperation" process to drive through the "Unitary Patent Package", (two regulations, one setting up
The CJEU has dismissed the Italian and Spanish challenges regarding the legality of the "enhanced cooperation" process to drive through the "Unitary Patent Package", (two regulations, one setting up the Unitary Patent, and the other dealing with translations (the "translation regime").
Background
The "enhanced cooperation" procedure is used as a last resort by the EU Council when it becomes apparent that, despite a general consensus of the EU to achieve certain objectives, those objectives cannot be attained within a reasonable period by the EU as a whole. The enhanced cooperation procedure permits nine or more member states to use the EU's processes and structures to make agreements that bind only those countries. This was the situation with the unitary patent.
Everyone was in favour, but insurmountable difficulties arose with the translation regime, making unanimity impossible in the foreseeable future. As a result, 25 Member States (out of 27) requested enhanced cooperation. Spain and Italy refused to participate, and sought annulment of the Council's decision authorising use of enhanced cooperation.
CJEU decision
Spain and Italy put forward a variety of arguments why the Council's decision should be annulled. They argued that enhanced cooperation must contribute to the process of integration. This decision circumvented the requirement for unanimity, brushing aside Spain and Italy's objections to the language arrangements for the unitary patent. They argued enhanced cooperation had not been correctly used, as a last resort, because they believed negotiations among all the Member States on the language arrangements had not been exhausted. Spain and Italy thought that creating a unitary patent covering only part of the Union was likely to damage the uniformity that currently exists within the EU, and not improve it.
In keeping with the earlier opinion of Advocate General Bot, the Court rejected the above arguments and dismissed their challenge.
Comment
It therefore appears to be full steam ahead for unitary patent protection, although Spain have recently launched two fresh challenges as a last gasp attempt to derail it. Many believe they are unlikely to succeed, due to the large momentum already gained, especially at political level. In any event what they have done is delay things - the likelihood of seeing a unitary patent in the first half of 2014 is now looking more remote.
Background
The "enhanced cooperation" procedure is used as a last resort by the EU Council when it becomes apparent that, despite a general consensus of the EU to achieve certain objectives, those objectives cannot be attained within a reasonable period by the EU as a whole. The enhanced cooperation procedure permits nine or more member states to use the EU's processes and structures to make agreements that bind only those countries. This was the situation with the unitary patent.
Everyone was in favour, but insurmountable difficulties arose with the translation regime, making unanimity impossible in the foreseeable future. As a result, 25 Member States (out of 27) requested enhanced cooperation. Spain and Italy refused to participate, and sought annulment of the Council's decision authorising use of enhanced cooperation.
CJEU decision
Spain and Italy put forward a variety of arguments why the Council's decision should be annulled. They argued that enhanced cooperation must contribute to the process of integration. This decision circumvented the requirement for unanimity, brushing aside Spain and Italy's objections to the language arrangements for the unitary patent. They argued enhanced cooperation had not been correctly used, as a last resort, because they believed negotiations among all the Member States on the language arrangements had not been exhausted. Spain and Italy thought that creating a unitary patent covering only part of the Union was likely to damage the uniformity that currently exists within the EU, and not improve it.
In keeping with the earlier opinion of Advocate General Bot, the Court rejected the above arguments and dismissed their challenge.
Comment
It therefore appears to be full steam ahead for unitary patent protection, although Spain have recently launched two fresh challenges as a last gasp attempt to derail it. Many believe they are unlikely to succeed, due to the large momentum already gained, especially at political level. In any event what they have done is delay things - the likelihood of seeing a unitary patent in the first half of 2014 is now looking more remote.