This morning, 16 April 2013, the Court of Justice dismissed the actions
brought by Spain and Italy against the Council Decision of 10 March 2011
authorizing enhanced cooperation in the area of the creation of unitary patent
protection, rejecting all the appellants' pleas. The Court has followed Advocate General Bot's opinion to the
letter four months after delivery.
The
Decision of 10 March 2011 paved the way for adoption of Regulation (EU) No. 1257/2012 of the European Parliament and of the Council of 17
December 2012 implementing enhanced cooperation in the area of the creation of
unitary patent protection and of Council Regulation (EU) No. 1260/2012 of
17 December 2012 implementing enhanced cooperation in the area of the creation
of unitary patent protection with regard to the applicable translation
arrangements. At the end of March of this year Spain launched challenges to both
Regulations (Cases C-146/13 and C-147/13), so the final decision in this now
long, drawn out chapter will have to wait until early 2015.
The
judgment of 16 April 2013 is significant for a number of reasons, for instance,
because it
a)
is the Court's first interpretation of the "enhanced cooperation" provided for
under Article 20 of the Treaty on European Union and Articles 326 to 334 of the
Treaty on the Functioning of the European Union, tying it in not so much with
integration as with surmounting the requirement of unanimity.
b)
provides that creating European intellectual and industrial property rights
falls within the framework of the internal market rather than coming under
competition rules.
c)
holds that "falling within non-exclusive competences" is a necessary and
sufficient condition for enhanced cooperation.
d)
accords the Council broad discretion in deciding when an issue is a "last
resort" within the meaning of Article 20 of the Treaty on European
Union.
e)
reiterates that acts by the institutions are only misuse of power where there is
objective, relevant, and consistent evidence that they have been taken solely,
or at the very least chiefly, for ends other than those for which the power in
question was conferred or with the aim of evading a procedure specifically
prescribed by the Treaties for dealing with the circumstances of the
case.
f)
anticipating a very interesting point bearing on the actions that have recently
been filed, considers that application of Article 118 of the Treaty on
Functioning of the European Union probably clashes with that of Article 142 the
Convention on the Grant of European Patents to the extent that the focus of the
former is the European Union and that of the latter the Member
States.
g)
endorses an "incremental" model of integration, with partial integration being
better than none at all.
h)
posits that enhanced cooperation being possible in this context, creation of
European intellectual and industrial property rights that do not encompass the
entire territory of the Union, instead taking in only a certain number of Member
States while leaving others out, should also be possible and that this is
neither detrimental to the internal market nor a distortion of
competition.
i)
concludes that the competences, rights, and obligations of Spain and Italy have
not been infringed in the course of this process.
Author: Manuel Desantes
Author: Manuel Desantes
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