06 July 2011

Breaking News: Italy and Spain File Anullment Actions Against EU Patent Enhanced Cooperation

As announced earlier, Italy and Spain now each filed an action of annulment against the EU Council Decision (cf. press release of 8 March 2011) which authorised creating the EU patent by enhanced cooperation with the Court of Justice of the European Union (see tweets on @ksnhlaw).

Thanks to tweets of @ksnhlaw, we now know that this information was made available by the EU Concil on 5 July 2011 by two separate documents with reference to the related cases C-295/11 and C-274/11

The following objections were raised by the two reluctant countries:
  1. Lack of competence and violation of Article 20(1) first subparagraph TUE: the Union has no competence to establish an enhanced cooperation in the field of Article 118 TFEU for the creation of a new Union intellectual property title.
  2. Misuse of powers: the envisaged enhanced cooperation does not aim to further the objectives of the Union but to circumvent the unanimity requirement in Article 118(2)
  3. Non respect of essential requirements to establish an enhanced cooperation, particularly those laid down in Article 20(2) TEU (last resort condition and impossibility to attain the objectives in a reasonable period by the Union as a whole).
  4. Violation of Articles 118 and 326 TFEU and 20(1) second subparagraph TUE: the enhanced cooperation does not realise a uniform protection of intellectual property rights throughout the Union and hinders the functioning of the internal market since it creates obstacles to trade between Members States and disorts competition.
It currently is unclear how the actions will influence the ambitious schedule for implementing the EU patent.

(Photo 2006 by Miki, Queen of Planet Goodaboom, via Flickr)