# C_2011219EN.01001201.xml

| 23.7.2011 | EN | Official Journal of the European Union | C 219/12 |
| --- | --- | --- | --- |

23.7.2011

EN

Official Journal of the European Union

C 219/12

---

Action brought on 3 June 2011 — Kingdom of Spain v Council of the European Union

(Case C-274/11)

2011/C 219/16

Language of the case: Spanish

Parties

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, Agent)

Applicant:

Defendant: Council of the European Union

Defendant:

Form of order sought

Form of order sought

| — | annul Council Decision 2011/167/EU; (1) |
| --- | --- |

—

annul Council Decision 2011/167/EU; (1)

1

| — | order the Council of the European Union to pay the costs. |
| --- | --- |

—

order the Council of the European Union to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | Misuse of powers since recourse was had to enhanced cooperation
  although the purpose is not to achieve integration of all the Member States — the mechanism having been used instead to avoid negotiating with a Member State, imposing upon it an opt-out solution — and although the objectives pursued in this instance could have been achieved by means of a special agreement as provided for in Article 142 of the European Patent Convention. (2) |
| --- | --- |

1.

Misuse of powers since recourse was had to enhanced cooperation
  although the purpose is not to achieve integration of all the Member States — the mechanism having been used instead to avoid negotiating with a Member State, imposing upon it an opt-out solution — and although the objectives pursued in this instance could have been achieved by means of a special agreement as provided for in Article 142 of the European Patent Convention. (2)

Misuse of powers since recourse was had to enhanced cooperation

2

| 2. | Failure to respect the judicial system of the EU
  in that no dispute resolution system is provided for in relation to certain legal rights subject to EU law. |
| --- | --- |

2.

Failure to respect the judicial system of the EU
  in that no dispute resolution system is provided for in relation to certain legal rights subject to EU law.

Failure to respect the judicial system of the EU

| 3. | In the alternative
  , should the Court find that it is appropriate in this instance to have recourse to enhanced cooperation and that it is possible to establish substantive rules for legal rights subject to EU law without making provision for a dispute resolution system in relation to those rights, the Kingdom of Spain submits that the necessary conditions for enhanced cooperation are not met for the following reasons:






  3.1. | infringement of Article 20(1) TEU
  , since in this instance enhanced cooperation is not a last resort and does not fulfil the objectives provided for in the TEU and since areas are referred to which are not within the scope of enhanced cooperation as they are exclusive competence of the EU. |
| --- | --- | --- |

3.

In the alternative
  , should the Court find that it is appropriate in this instance to have recourse to enhanced cooperation and that it is possible to establish substantive rules for legal rights subject to EU law without making provision for a dispute resolution system in relation to those rights, the Kingdom of Spain submits that the necessary conditions for enhanced cooperation are not met for the following reasons:

In the alternative

3.1.

infringement of Article 20(1) TEU
  , since in this instance enhanced cooperation is not a last resort and does not fulfil the objectives provided for in the TEU and since areas are referred to which are not within the scope of enhanced cooperation as they are exclusive competence of the EU.

infringement of Article 20(1) TEU

| 3.2. | infringement of Article 326 TFEU
  , since enhanced cooperation in this instance infringes the principle of non-discrimination and undermines the internal market and economic, social and territorial cohesion, constituting discrimination in trade between Member States and distorting competition between them. |
| --- | --- |

3.2.

infringement of Article 326 TFEU
  , since enhanced cooperation in this instance infringes the principle of non-discrimination and undermines the internal market and economic, social and territorial cohesion, constituting discrimination in trade between Member States and distorting competition between them.

infringement of Article 326 TFEU

| 3.3. | infringement of Article 327 TFEU
  , since the enhanced cooperation does not respect the rights of the Kingdom of Spain, which is not participating in it. |
| --- | --- |

3.3.

infringement of Article 327 TFEU
  , since the enhanced cooperation does not respect the rights of the Kingdom of Spain, which is not participating in it.

infringement of Article 327 TFEU

---

(1)  Council Decision 2011/167/EU of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection (OJ 2011 L 76, p. 53).

1

(2)  Convention on the Grant of European Patents of 5 October 1973.

2

---