Advocate General Bot has recently given his opinion in joined cases C-274/11 and C-295/11, Kingdom of Spain and Italian Republic vs Council of the European Union.
Proposals for a European unitary patent have been steadily moving forward over the past couple of years. However, one major stumbling block to the negotiations has been Spain and Italy’s objection to having only English, French and German as official languages of the proposed patent system. Last year, we reported [insert link] that the Competitiveness Council had approved the use of the so-called “enhanced cooperation procedure” to break the deadlock, and to allow the proposals for the unitary patent to move forward with only 25 of the 27 EU member states on board.
Spain and Italy filed actions in the Court of Justice of the European Union (CJEU) for annulment of the Council decision, arguing among other things that the conditions for enhanced cooperation were not met, that the decision amounted to an abuse of power, and that it would hinder the internal market of the EU by creating obstacles to trade.
Advocate General Bot has now issued his opinion in this case, in which he has proposed that the Court dismiss actions brought by Spain and Italy.
In his opinion, the Advocate General addressed the objections raised by Spain and Italy. In response to an objection that the Council was not competent to authorise the use of enhanced cooperation, the Advocate General stated that intellectual property rights fall within the scope of the internal market of the EU, an area which falls within the purview of both the EU and the Member States.
Dealing with the objection that the conditions for enhanced cooperation were not met, the Advocate General noted that enhanced cooperation should only be used as a last resort, when the desired objective cannot be achieved in the EU as a whole within a reasonable period. “Last resort” is not defined in the EU treaties, nor is the concept of a “reasonable period”, and the presence of a deadlock in the present case suggested the impossibility of reaching a compromise. The Advocate General added that the Council, which was involved with the legislative process, was well placed to determine whether compromise was possible through normal legislative channels.
Finally, the Advocate General pointed out that enhanced cooperation is merely a procedural framework. The debate over language and translation requirements within the proposed unitary patent are not relevant to the question of whether enhanced cooperation is permitted and should therefore not be part of the case.
The Advocate General’s opinion is not binding on the CJEU, and we now await the decision the Court on this case. We consider it likely that the Court will follow the Advocate General's opinion, and Spain and Italy's attempt to block the unitary patent will fail.
In the meantime, the European Parliament has just approved the proposal for the unitary patent. We will be commenting on the impact of the proposed new system in the near future.
21 December 2012