Brussels, 11/12/2012 (Agence Europe) - Advocate General Yves Bot has proposed that the European Court of Justice dismiss the actions brought by Spain and Italy against the Council's decision of March 2011 authorising enhanced cooperation in the area of the unitary patent (see EUROPE 10333). He also considers that the Council had competency for adopting such a decision, given that the creation of a European intellectual property right is not within the exclusive remit of the member states.
In his conclusions provided on Tuesday 11 December (C-274/11 and C/295/11), Bot provides a point-by-point response to the objections formulated by the two member states in their respective pleas. Therefore:
The legality of the decision. This is the first time that the Court has been called on to examine a decision by the Council, which has authorised enhanced cooperation. The Court must thus confine itself to reviewing the legality and not the whole case and examine whether the Council made a manifest error or misused its powers or manifestly exceeded the bounds of its discretion.
Scope of the Council. According to Bot, the fact that the rights resulting from a patent affect trade and competition does not mean that the unitary patent is a right that is covered by competition rules, one of the exclusive areas of scope for the Union, in which states cannot exercise enhanced cooperation but that are precisely defined by the treaties. He considers that the patent is covered by the internal market which is a competency shared between the Union and member states and in which the treaties bestowed the Council with the necessary scope for authorising enhanced cooperation.
Misuse of Council power. By authorising implementation of enhanced cooperation to overcome the blockage affecting the patent's linguistic regime, the Council has effectively only used an instrument it has at its disposal in accordance with the treaties to speed up the accomplishment of a Union objective, protect the interests of member states and enhance the integration process.
Violation of the Union's jurisdictional system. Even if, as pointed out by the Court (see EUROPE 10331), the creation of a jurisdictional body for the European and Community patent is not compatible with the treaties and therefore does not meet the required conditions for the implementation of enhanced cooperation, Bot points out that the authorisation by the Council is only a premise for the adoption of other legislative acts which should themselves be used to practically apply such cooperation.
Enhanced cooperation should only be a “last resort”, when the objectives sought cannot be attained within a reasonable period for the Union as a whole. The treaties do not define the notion of “last resort” or “reasonable period”. According to the Advocate General, the “last resort” is not necessarily the fact that a legislative proposal has been rejected by a vote but rather the fact that there is a genuine deadlock, which could arise at any level of the legislative process and which demonstrates that it is impossible to arrive at a compromise. Enhanced cooperation would thus be the tool used as a last resort, where it is established that no compromise will be found by means of the normal legislative procedure. The Advocate General considers that the Council is best placed to work out whether enhanced cooperation is indeed adopted as “a last resort” and that the Court simply checks whether it has carefully and impartially examined all the appropriate aspects. According to Bot, the Council has not in this case committed any mistake because after years of unsuccessful debate, unanimity for action with the full participation of all member states has not been obtained.
Damages to internal market and economic, social and territorial cohesion, impediment to and discrimination against trade between member states and distortion of competition. The decision to approve mechanisms for applying enhanced cooperation simply defines the procedural framework in which other acts will be subsequently adopted, which define the content of the cooperation itself, explained Bot. Although the Council effectively discussed but did not decide upon the linguistic regime of the unitary patent, this question is not a condition that determines the validity of the decision to authorise enhanced cooperation. This should be tackled at a later stage as a subject of a separate act and be adopted at unanimity by participating member states. The Court would then be able to proceed to jurisdictional control of the said act within the context of subsequent action being taken later. The examination by the Council in its current decision does therefore not display any obvious mistake.
Non-respect of scope, rights and obligations of states not participating in enhanced cooperation. According to the Spanish government, the linguistic regime envisaged would oblige the member state that is not participating in it to renounce the right to a translation of the patent specifications into their own language. Such translation cannot produce legal effects on the territory of the state in question. In this connection, Bot explained that the question of the linguistic regime is not decisive with regard to the validity of the decision authorising enhanced cooperation. He subsequently proposes that the Court rejects the pleas by Spain and Italy and therefore rejects their two demands. (FG/transl.fl)