I really don’t know what will come out of ES & IT actions to nullify the enhanced cooperation. While I have no doubt anymore that the implementing regulation and the UPC agreement are not compliant with EU Law and Opinion 1/09 CJEU, it can be argued that the authorisation for the enhanced cooperation is on the tracks of EU Treaties. After all, if it was written down in Treaties and refined until Lisbon Treaty, it is to use it to overcome unanimity deadlock. On the other hand, there are serious legal reasons to reject this procedure. The best analysis is:

Lamping, Matthias, Enhanced Cooperation – A Proper Approach to Market Integration in the Field of Unitary Patent Protection? (October 20, 2011). International Review of Intellectual Property and Competition Law, No. 8, 2011. Available at SSRN: http://ssrn.com/abstract=1946875 (apparently the paper cannot be downloaded anymore, I can give a copy if needed).

So the CJEU will have to eventually decide whether to open up the gates for the enhanced cooperation procedure or to define it in a narrow way in order that this procedure cannot be used for political convenience.

The enhanced cooperation has never been really tested. The Divorce directive was not a real issue, everybody agreeing to disagree (participating and non-participating Member States). So the unitary patent is a first test.

Authorising enhanced cooperation for the unitary patent would give confidence to Member States to use it more often to overcome their disunity. Financial regulations are candidates ready to jump in if the door is opened. But is this really what the Union should be about? I don’t have the answer. What do you think?

Also, this case is special in that the implementations of the enhanced cooperation, i.e. the unitary patent regulations and the UPC, have been set up rather quickly (despite all sudden developments) in a way that can hardly pleased to the CJEU. Specially after its strong opinion on the former EEUPC project. Since there are some arguable legal grounds to reject the authorisation for the enhanced cooperation procedure, it might well be that CJEU decides to put an end to this mess, without waiting to review the regulation.

We will know better in a few hours (9:30) when conclusions of Advocate General are published.

Thanks for this post! Indeed what has been witnessed in the process concerning a unitary patent and a unified patent court, is quite telling about the more global issue of the EU.

One remark though. It is important to not confuse euroscepticism with critics on EU. I’m a French citizen and actually feel more europhile than ever. I work and have friends throughout the whole Europe, from Poland to United-Kingdom, including from Turkey. Nevertheless, having been closely involved in some EU legislative process, I cannot tell anything but that EU does not work in the benefit of Europe.

Just look at the unitary patent regulation and the unified patent court agreement that have been extensively covered on KSNH blog. I’ve tried to show may times that this project was actually going *against* the EU (for eg. here, or on my last post: The Lord of the Unitary Patents: a preview on European Parliament plenary vote).

I have also many German friends who I’m discussing with, and they all agree that the current EU has actually been taken over by Germany from decades. This can be seen in economic EU policy, as well as on the unitary patent package.

So eventually triggering the ejector seat, can also be seen as a way to build a peaceful, fair, balanced and effective Europe, without having to suffer from the current EU severe drawbacks.