The two countries had complained to Europe’s top court over the European Council’s 2011 decision to use the so-called enhanced procedure to allow the remaining 25 member states to agree a deal between themselves on a single European patent.
Italy and Spain have long been opposed to the unitary patent on language grounds, complaining that plans to use English, French and German as the new patent’s official languages discriminates against Spanish and Italian speakers.
But today the Court ruled that it was acceptable for the European Council to use the enhanced cooperation procedure after efforts to achieve agreement from each of the EU’s 27 member states had failed.
Although the Court acknowledged that it would be unacceptable for the Council to use the enhanced procedure whenever member states failed to reach agreement on an issue, it said that in this case, the Council had carefully and impartially ascertained whether the condition of “last resort” had been met. In particular, the Court noted that negotiations on the unitary patent began in 2000 and that a range of language arrangements had been discussed by member states.
The judges also rejected Spain and Italy’s arguments that the decision by the other 25 states to press ahead with a unitary patent without them would damage the internal market or the economic, social and territorial cohesion of the EU.
Spain is believed to have filed another case at the CJEU challenging the patent plans on other grounds, though details of this complaint are not yet available.
Today's decision means the unitary patent and unified patent court (UPC) plans are on track. The new system is expected to come into effect in 2015, once the UPC agreement has been ratified by at least 13 member states.
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