We reported at the end of 2012 that the European Parliament had approved the Council Regulations for enhanced co-operation in the area of unitary patent protection and that the only remaining hurdle was approval by the Court of Justice of the European Union (CJEU).

 

We are pleased to now report that the Court has approved those regulations.

 

The Court has ruled that, in the light of it being impossible for the Member States to agree on a common system for the whole EU within a reasonable period, enhanced co-operation between 25 of the 27 Member States does indeed contribute to the process of European integration.

 

Spain and Italy had asked the Court of Justice to annul the Council's decision to embark on enhanced co-operation, on several grounds, each of which the CJEU dismissed:

 

• The Council did not "brush aside" objections from Spain and Italy to the Commission's proposal on the language arrangements. Nothing in the Treaty on the Functioning of the European Union requires that enhanced cooperation be unanimous.
• Enhanced cooperation must be "last resort", and in this case the Council did carefully and impartially ascertain whether the condition of "last resort" had been met.
• The protection conferred by a unitary patent would not be disadvantageous in terms of uniformity and integration.
• The contested decision does not damage the internal market or the economic, social and territorial cohesion of the EU nor prejudice any competence, right or obligation of those Member States not participating in the Unitary Patent.

The decision does not finally close off all challenges to the unitary patent. It brings to an end cases C-274/11 and C-295/11, but Spain has filed other actions against the Council's two Regulations, and these are pending under case Nos C-146/13 and C-147/13. The statements of grounds of these actions are not yet available.

 

Aside from Spain's remaining challenges, the next major step in the timetable in the timetable towards the Unitary Patent will be primary legislation in UK, France and Germany, which is expected in 2014.