Joined Cases C-274/11 and C-295/11

Kingdom of Spain and Italian Republic

v

Council of the European Union

‛Unitary patent — Decision authorising enhanced cooperation under Article 329(1) TFEU — Actions for annulment on grounds of lack of competence, misuse of powers and infringement of the Treaties — Conditions laid down in Article 20 TEU and in Articles 326 TFEU and 327 TFEU — Non-exclusive competence — Decision adopted ‘as a last resort’ — Preserving the interests of the Union’

Summary — Judgment of the Court (Grand Chamber), 16 April 2013

Approximation of laws — Industrial and commercial property — Patent right — Creation of a European patent ‘in the Union’ — Application in the context of enhanced protection — Uniform protection in the territory of the participating Member States and not throughout the Union — Whether permissible

The competences conferred by Article 118 TFEU for the purpose of creating European intellectual property rights, providing uniform protection of intellectual property rights throughout the Union and setting up centralised Union-wide authorisation, coordination and supervision arrangements and the competence to establish language arrangements for those rights, which is closely bound up with the introduction of the latter, fall within an area of shared competences for the purpose of Article 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Article 20(1) TEU. It follows that the Council is competent to authorise enhanced cooperation in the sphere of the creation of protection by unitary patent. (see paras 17, 18, 25, 26)

In this connection, it must be noted that nothing in Article 20 TEU or in Articles 326 TFEU to 334 TFEU forbids the Member States to establish between themselves enhanced cooperation within the ambit of those competences that must, according to the Treaties, be exercised unanimously. On the contrary, it follows from Article 333(1) TFEU that, when the conditions laid down in Article 20 TEU and in Articles 326 TFEU to 334 TFEU have been satisfied, those powers may be used in enhanced cooperation and that, in that case, provided that the Council has not decided to act by qualified majority, it is the votes of only those Member States taking part that constitute unanimity. In addition, Article 20 TEU and Articles 326 TFEU to 334 TFEU do not circumscribe the right to resort to enhanced cooperation solely to the case in which at least one Member State declares that it is not yet ready to take part in a legislative action of the Union in its entirety. The impossibility, referred to in Article 20(2) TEU, of the objectives of that cooperation being attained within a reasonable period by the Union as a whole may be due to various causes, for example, lack of interest on the part of one or more Member States or the inability of the Member States, which have all shown themselves interested in the adoption of an arrangement at Union level, to reach agreement on the content of that arrangement. It follows that the Council’s decision to authorise enhanced cooperation, having found that the unitary patent and its language arrangements could not be established by the Union as a whole within a reasonable period, by no means constitutes circumvention of the requirement of unanimity laid down in the second paragraph of Article 118 TFEU or, indeed, exclusion of those Member States that did not join in making requests for enhanced cooperation. (see paras 35-37)

The expression ‘as a last resort’, used in Article 20(2) TEU, highlights the fact that only those situations in which it is impossible to adopt such legislation in the foreseeable future may give rise to the adoption of a decision authorising enhanced cooperation. The Court, in exercising its review of whether the condition that a decision authorising enhanced cooperation must be adopted only as a last resort has been satisfied, must therefore ascertain whether the Council has carefully and impartially examined those aspects that are relevant to this point and whether adequate reasons have been given for the conclusion reached by the Council. Those conditions have been met, for the Council correctly took into account the fact that the legislative process undertaken with a view to the establishing of the European patent was begun in the course of the year 2000, that this process covered several stages, that a great many different language arrangements for the unitary patent were discussed among all the Member States within the Council and that none of those arrangements, with or without the addition of elements of compromise, found support capable of leading to the adoption at Union level of a full ‘legislative package’ relating to that patent. (see paras 50, 54-56)

See the text of the decision. (see para. 58)

European patents granted in accordance with the rules of the Convention of the grant of European patents, signed at Munich on 5 October 1973 (‘the EPC’), do not confer uniform protection in the Contracting States to that convention but rather, in every one of those States, guarantee protection whose extent is defined by national law. In contrast, the unitary patent contemplated by Decision 2011/167, authorising enhanced cooperation in the sphere of establishing uniform protection in the territory of all the Member States taking part in the enhanced cooperation. Accordingly, the protection conferred by this unitary patent is advantageous in terms of uniformity and integration, compared to the situation created by the operation of the rules laid down by the EPC. (see paras 62, 63)