Enhanced Cooperation in the Area of Unitary Patent Protection - Testing the Boundaries of the Rule of Law
published in 20 Maastricht J. Eur. Comp. L. 2013, 589
15 Pages Posted: 8 Feb 2015
Date Written: February 6, 2015
The paper analyses the European Court of Justice's decision in cases C-274/11 and 295/11 (Spain and Italy v Council) regarding enhanced cooperation for the creation of the European patent with unitary effect - the unitary patent. The actions called for an annulment of the Council decision authorizing enhanced cooperation on grounds of lack of competence, misuse of powers and infringement of the Treaties. In a desperate attempt to save what is left of the EU’s credibility in matters of European patent policy, the Court of Justice dismissed the actions and thereby turned enhanced cooperation from a factor of integration into an instrument of repressive dominance. Besides giving a new lease of life to an untamable patent system that falls short of all its predecessors - both legally and politically - the Court’s decision sets a dangerous precedent for differentiated integration in other policy areas.
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
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