The actions brought by Spain and Italy against the Council’s decision authorising enhanced cooperation in the area of the single European patent have been dismissed by the European Court of Justice because it as held to be unfounded Spain and Italy’s argument that the protection conferred by that unitary patent would not be advantageous in terms of uniformity.

The European Court of Justice has dismissed the actions brought by Spain and Italy against the Council’s decision authorising enhanced cooperation in the area of the single European patent, because it considers that the contested decision does not damage the internal market or the economic, social and territorial cohesion of the EU. Besides, according to the Court, the contested decision does not prejudice any competence, right or obligation of those member states not participating in this enhanced cooperation. In December 2012, the European Parliament and the Council backed EU unitary patent rules.

In its judgment, the Court has held to be unfounded Spain and Italy’s argument that the protection conferred by that unitary patent would not be advantageous in terms of uniformity, and so of integration, compared to the situation created by the operation of the rules laid down by the Convention on the grant of European patents (European Patent Convention). In contrast, the Court highlighted that the single European patent contemplated by the contested decision would confer uniform protection in the territory of all the member states taking part in the enhanced cooperation.

On the other hand, the judgment considers essential for enhanced cooperation not to lead to the adoption of measures that might prevent the non-participating member states from exercising their competences and rights or shouldering their obligations, it is, in contrast, permissible for those taking part in this cooperation to prescribe rules with which those non-participating states would not agree if they did take part in it. The prescription of such rules does not, in any case, render ineffective the opportunity for non-participating member states ofjoining in the enhanced cooperation in future.