As noted in an earlier post Spain has recently filed a further challenge against the unitary patent system. That wasn’t, however, their first crack at bringing down the system. Back in May 2011, Spain and Italy filed actions (C-274/11 and C-295/11 respectively) against the Council of the European Union attacking the use of the enhanced cooperation procedure that underpins the unitary patent system. Today comes news of the decision of the Court of Justice of the European Union (CJEU) in respect of the earlier Italian/Spanish challenge.

The above two actions were joined together after filing and the arguments arranged into five pleas in law: first, that the Council lacked competence to establish the enhanced cooperation in question; second, misuse of powers; third, breach of the condition that the decision authorising enhanced cooperation must be adopted as a last resort; fourth, infringements of Articles 20(1) TEU, 118 TEU, 326 TFEU and 327 TFEU and, fifth, disregard for the judicial system of the Union.

Back in December 2012 Advocate General Bot gave his Opinion on these joined cases and dismissed the actions brought by Spain and Italy. See the IPKat’s report on this here. Since December we have been awaiting the CJEU’s decision on the joined cases. As noted in the IPKat report it was expected that the CJEU would follow the Advocate General’s recommendations.

This morning the CJEU issued their decision and dismissed the Spanish and Italian actions. The press release is here and, for the insomniacs amongst our readership, the decision in its full glory is here.

So, the first two challenges are down and attention now turns toward the two new actions, C-146/13 and C-147/13. At the moment, the content of the two new challenges is unknown but as soon as we hear more we’ll let you know.

Mark Richardson    16 April 2013