[pp.int.general] Fwd: [The IPKat] Unitary patents: how Spain takes on the rest of Europe

Amelia Andersdotter teirdes at gmail.com
Tue Jul 12 13:07:19 CEST 2011

hope nobody missed this

-------- Original Message --------
Subject: 	[The IPKat] Unitary patents: how Spain takes on the rest of 
Date: 	Mon, 11 Jul 2011 10:55:58 -0700 (PDT)
From: 	Jeremy <jjip at btinternet.com>
Reply-To: 	jjip at btinternet.com
To: 	ipkat_readers at googlegroups.com

*Casually checking the Curia website for signs of excitement *on a 
Monday is usually a bit of a waste of time.  This Kat was prowling 
around the site in the hope that perhaps some careless bureaucrat had 
inadvertently posted tomorrow's ruling in Case C-324/09 /L’Oréal v eBay/ 
a day early. The Kat's curiosity was rewarded -- but not in the way he'd 
hoped.  Instead he found a real live action brought by the Spanish 
against our lords and masters in the Council of the European Union 
itself: *Case C-274/11 
/Kingdom of Spain v Council of the European Union,/ to be precise.  This 
is an action to annul *Council Decision 2011/167 
of 10 March 2011 authorising enhanced cooperation in the area of the 
creation of unitary patent protection (OJ 2011 L 76, p. 53). The legal 
substance of the Spanish case runs like this:

    "*Pleas in law and main arguments *

    1. Misuse of powers since recourse was had to enhanced cooperation
    although the purpose is not to achieve integration of all the Member
    States - the mechanism having been used instead to avoid negotiating
    with a Member State, imposing upon it an opt-out solution - and
    although the objectives pursued in this instance could have been
    achieved by means of a special agreement as provided for in Article
    142 of the *European Patent Convention

    2. Failure to respect the judicial system of the EU in that no
    dispute resolution system is provided for in relation to certain
    legal rights subject to EU law. 

    3. In the alternative, should the Court find that it is appropriate
    in this instance to have recourse to enhanced cooperation and that
    it is possible to establish substantive rules for legal rights
    subject to EU law without making provision for a dispute resolution
    system in relation to those rights, the Kingdom of Spain submits
    that the necessary conditions for enhanced cooperation are not met
    for the following reasons: 

    3.1 infringement of Article 20(1) *TEU
    the Treaty on European Union, not to be confused with ...)*, since
    in this instance enhanced cooperation is not a last resort and does
    not fulfil the objectives provided for in the TEU and since areas
    are referred to which are not within the scope of enhanced
    cooperation as they are exclusive competence of the EU. 

    3.2 infringement of Article 326 *(... the Treaty on the Functioning
    of the European Union)* *TFEU
    since enhanced cooperation in this instance infringes the principle
    of non-discrimination and undermines the internal market and
    economic, social and territorial cohesion, constituting
    discrimination in trade between Member States and distorting
    competition between them. 

    3.3 infringement of Article 327 TFEU, since the enhanced cooperation
    does not respect the rights of the Kingdom of Spain, which is not
    participating in it".

Spain has taken on the rest of Europe before -- *winning in commendable 
style* <http://en.wikipedia.org/wiki/UEFA_Euro_2008> -- but this is 
different, notes the IPKat: it's not the other bits of Europe that Spain 
is challenging this time, so much as the rules of the game themselves. 
Hmm, says Merpel, the politics gets really interesting once you bring 
football into it.  Spain's prowess is, to a considerable extent, owed to 
the excellence of a team from Catalonia, the little of the planet that 
uses the .cat top level domain.

Posted By Jeremy to The IPKat 
on 7/11/2011 06:55:00 PM --
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