First decision of the ECJ on the unitary patent

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The European Court of Justice (ECJ) has dismissed the complaints of Spain (C-274/11) and Italy (C-295/11) against the Council of the European Union with a view to the Unitary Patent, concurring with the Opinion of Advocate General Bot, rendered on 25 September 2012.

The complaints of Spain and Italy were primarily directed against the decision of the Council of the European Union to authorize an enhanced cooperation of some member states in the area of the creation of unitary patent protection (OJ 2001 L 76, p. 53). Enhanced cooperation is governed by Art. 118, resp. Art. 329 of the Treaty on the Functioning of the European Union (TFEU). It is — in a nutshell — a procedure that allows that certain projects are realized by certain member states, if (unanimous) agreement on this project cannot be achieved with all member states. Under enhanced cooperation, the member states pursuing the joint project may use the institutions of the European Union (e.g. Parliament, Council and Commission). Accordingly, enhanced cooperation is a mechanism to avoid that member states pursue certain projects on their own (i.e. outside the EU framework) and ensures that a deadlock on development in the EU with an ever growing number of member states with different interests is avoided. In order to assure that no segmentation of the common market takes place between the member states participating in the enhanced cooperation and member states not participating, it is a requirement of enhanced cooperation that any member state not participating is free to join the cooperation at any time.

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