Spain and Italy v Council, CJEU 16 April 2013, Case Numbers C-274/11 and C-295/11
In their actions seeking annulment of the Council’s decision of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection, Italy and Spain mainly submitted that Article 118 TFEU was not a proper legal basis for the Council’s decision. Following the Attorney General’s proposal (see post dated 11 December 2012), the CJEU dismisses the actions.
In particular, the CJEU concludes that the Council’s decision was taken within the competence provided by Article 118 TFEU and that it was taken as a last resort considering the fruitless stages before the contested decision. The Court rejects the plaintiffs’ argument that creating uniform protection in one part only of the Union would undermine the internal market and states that it is inherent in the concept of enhanced cooperation that acts adopted in its framework bind only participating Member States. Rather, the Court follows the Council’s position that the fragmentation of the market is to be found, not in the contested decision, but in the present situation, in which the protection offered by European patents is national.
The decision does not finally bring legal certainty for the unitary patent since Spain filed actions against the results of the enhanced cooperation, i.e. the Regulations (EU) No 1527/2012 and No 1260/2012 on the creation of unitary patent protection and on the translation arrangements (Cases C-146/13 and C-147/13). The statements of grounds of these actions are not yet available.
Read the press release of the ECJ No 47/13 (in English) here.
Read the judgment (in English) here.
Reported by Dr. Rudolf Teschemacher