Tuesday, 16 April 2013

Court of Justice rejects case of Spain and Italy against enhanced cooperation

Underlying the unitary patent is Council Decision 2011/167/EU, which allows the so-called 'enhanced cooperation'. The enhanced cooperation allowed the EU members to create a unitary patent system without Spain and Italy. Enhanced cooperation is not the norm at EU. It is much preferred that the parties come to an agreement that will hold in all EU member states.

Spain and Italy objected to this decision at the Court of Justice of the EU: joint cases C‑274/11 and C‑295/11. Today 16 April 2013, the court entered a judgment.

Among others, they complained that the true object of enhanced cooperation was to keep Spain and Italy out of the negotiations about the issue of the language arrangements for the unitary patent. In this view, the council had misused its powers.

However, the Court has ruled that none of the arguments relied on by the Spain and Italy can be upheld. The request for annulment of the enhanced cooperation decision is dismissed.

This court decision is certainly good news for the adoption of the unitary patent. However, two legal challenges remain. Based on the decision to allow enhanced cooperation, the EU member states created two regulations defining the unitary patent. These two regulations are challenged by Spain in cases C-146/13 and C-147/13. They are still pending. 

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