Opinion of the Advocate General — ECLI:EU:C:2014:2381
Date: 2014-11-18
Language of the case: Spanish
Subject matter: Intellectual, industrial and commercial property;Patents;Closer cooperation
Procedure: Action for annulment - unfounded
Origin: Spain

Summary — Judgment of the Court (Grand Chamber), 5 May 2015 1. European Union — Rules on languages — Whether there is a general principle that every citizen has the right to have all measures that may affect his or her interests drawn up in his or her language — None — Different treatment of official languages of the European Union — Whether permissible — Conditions — Justification in the light of the general interest— Observance of the principle of proportionality 2. Approximation of laws — Industrial and commercial property — Patent right —European patent with unitary effect — Regulation No 1260/2012 on applicable translation arrangements —Different treatment of official languages of the Union based on the objective of creating a uniform and simple translation regime — Whether that treatment appropriate and proportionate— Whether permissible (Council Regulation No 1260/2012, Recitals 4, 5 and 16 and Art. 3(1)) 3. Institutions of the European Union — Exercise of powers — Delegations — Existence of delegation to the European Patent Office or Member States participating in enhanced cooperation on the unitary patent —None (European Parliament and Council Regulation No 1257/2012, Art. 1(2) and 9(1)(d) and (f); Council Regulation No 1260/2012, Arts 5 and 6(2)) 4. Acts of the institutions — Choice of legal basis — Criteria — Regulation No 1260/2012 on translation arrangements applicable to the European patents with unitary effect — Adoption on the basis of the second paragraph of Article 118 TFEU — Whether permissible (Art. 118, second para., TFEU; Council Regulation No 1260/2012, Arts 3, 4 and 6) 5. Approximation of laws — Industrial and commercial property — Patent right — European patent with unitary effect –Regulation No 1260/2012 on applicable translation arrangements — Breach of the principle of legal certainty —None (European Parliament and Council Regulation No 1257/2012, Art. 2(e), 3(1) and 9; Council Regulation No 1260/2012, Arts 2(b), 3(2), 4 and 9) 6. Acts of the institutions — Regulations — Direct applicability — Implementing power conferred on Member States — Whether permissible (Art. 288, second para., TFEU; Council Regulation No 1260/2012, Art. 7(2)) 1. References in the Treaties to the use of languages within the European Union cannot be regarded as evidencing a general principle of European Union law to the effect that anything that might affect the interests of a European Union citizen should be drawn up in his language in all circumstances. However, in so far as a legitimate objective of general interest may be relied upon and be shown to be genuine, a difference in treatment on the ground of language must observe the principle of proportionality, that is to say, it must be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it. In that regard, the necessary balance must be maintained between, on the one hand, the interests of economic operators and the public interest in terms of the cost of proceedings, and, on the other, the interests of applicants for intellectual property rights and those of other economic operators in regard to access to translations of texts which confer rights, or proceedings involving more than one economic operator. (see paras 31, 33, 41) 2. Regulation No 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements and in particular Article 3(1) thereof, differentiates between the official languages of the European Union, restricting the choice to English, French or German. However, the choice of the Council, in establishing the arrangements for translation of the European patent with unitary effect, is appropriate and proportionate to the legitimate objective pursued by that regulation, namely, the creation of a uniform and simple translation regime, the arrangements for translation having to be simple and cost-effective. The arrangement established by Regulation No 1260/2012 does indeed make it possible to achieve the legitimate objective of facilitating access to patent protection, particularly for small and medium‑sized enterprises, by reducing the costs associated with translation requirements. Further, the regulation maintains the necessary balance between the various interests and, therefore, does not go beyond what is necessary to achieve the legitimate objective pursued. (see paras 32, 34, 38, 39, 47) 3. Since the Council did not delegate either to the Member States participating in enhanced cooperation in the area of the creation of unitary patent protection or to the European Patent Office implementing powers which are uniquely its own under European Union law, the principles set out by the Court in its case-law with regard to the delegation of discretionary power cannot apply. In that regard, while Article 9(1)(d) and (f) of Regulation No 1257/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection provide that the participating Member States are to confer on the European Patent Office additional tasks, that is in order to implement the provisions of Articles 143 and 145 of the Convention on the Grant of European Patents. Yet those tasks are intrinsically linked to the implementation of the unitary patent protection introduced by Regulation No 1257/2012. Consequently, the fact that the European Patent Office is given additional tasks is a consequence of the fact that the participating Member States, as contracting parties to that convention, entered into a special agreement within the meaning of Article 142 of that convention. (see paras 60-63) 4. The choice of legal basis for a European Union measure must rest on objective factors amenable to judicial review, including in particular the aim and the content of the measure. As regards the aim of Regulation No 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, based on the second paragraph of Article 118 TFEU, the objective of that regulation is the creation of a uniform and simple translation regime for European patents with unitary effect. Article 4 of Regulation No 1260/2012 is directly part of the language arrangements for the European patent with unitary effect, since it sets out the special rules governing the translation of that patent in the specific context of a dispute. Since the language arrangements for the European patent with unitary effect are defined by all the provisions of that regulation and more specifically Articles 3, 4 and 6, which are intended to apply to different situations, Article 4 of the regulation cannot be detached, with respect to the legal basis, from the remainder of the provisions of that regulation. Consequently, it cannot validly be maintained that the second paragraph of Article 118 TFEU cannot serve as a legal basis for Article 4 of Regulation No 1260/2012. (see paras 68, 69, 73, 74) 5. See the text of the judgment. (see paras 79, 81-88) 6. The direct application of a regulation, laid down in the second paragraph of Article 288 TFEU, means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law, unless the regulation in question leaves it to the Member States themselves to adopt the necessary legislative, regulatory, administrative and financial measures to ensure the effective application of the provisions of that regulation. Such is the case with Regulation No 1260/2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, where the European Union legislature has left it to the Member States, in order that the provisions of that regulation can be applied, first, to adopt a number of measures within the legal framework established by the Convention on the Grant of European Patents and, secondly, to undertake the establishment of the Unified Patent Court, which is essential in order to ensure the proper functioning of that patent, consistency of case-law and hence legal certainty, and cost-effectiveness for patent proprietors. (see paras 94, 95)