Enhanced Cooperation - A Proper Approach to Market Integration in the Field of Unitary Patent Protection?

Abstract

The article provides a comprehensive analysis of the constitutional foundations of, and limitations to, enhanced cooperation (see Article 20 TEU and Articles 326 to 334 TFEU) by taking the negative example of the European patent with unitary effect - the unitary patent. Enhanced cooperation provides an integration alternative to Member States that are eager to further the construction of Europe and would otherwise be slowed down by Member States that are not yet willing or capable of committing themselves to that step. Despite common wisdom among lawyers, it is not about overcoming negotiation blockades. Differentiated integration can only be reconciled with the principles of cohesion, solidarity and loyalty if it is based on general consensus. The Member States must thus agree that differentiation is an acceptable and temporary solution for the achievement of a common objective. They may disagree about the timing of integration, but never about its content and modalities.

Keywords: Community patent, EU patent, unitary patent, European patent with unitary effect, UPC, Unified Patent Court, differentiated integration, graduated integration, flexibility, enhanced cooperation, closer cooperation, internal market, multi-speed Europe