CYIL vol. 10 (2019)

MAGDALÉNA SVOBODOVÁ CYIL 10 ȍ2019Ȏ that the negotiations relating to language arrangements were brief 51 and that “both at the date on which the Commission presented its proposal for authorisation to the Council and at the date of the contested decision, there still existed real chances of reaching a compromise”. 52 Although the arguments of Spain and Italy might seem relevant, the Court of Justice did not accept them. It held that the Council, in taking the final decision on enhanced cooperation “is best placed to determine whether the Member States have demonstrated any willingness to compromise and are in a position to put forward proposals capable of leading to the adoption of legislation for the Union as a whole in the foreseeable future.“ 53 One may conclude that the Court of Justice rules in favour of enhanced cooperation but it should be also added that the court rarely annuls legal acts of Union bodies in general. The experience with enhanced cooperation confirms that the crucial principle of openness works in practice. In 3 out of 5 cases other Member States joined the respective enhanced cooperation later. In the enhanced cooperation on law applicable to divorce, initially 14 Member States participated, and 3 others joined it during ensuing years – Lithuania, 54 Greece, 55 and Estonia. 56 When it comes to enhanced cooperation regarding unitary patent protection, it is interesting that the original opponent Italy finally joined it 57 (and thus only Spain and Croatia are missing). It is considered that the reason why Italy changed its mind and decided to participate is the benefit of the involvement in the unitary patent protection system on small and medium-sized enterprises, which constitute the backbone of the Italian economy. 58 When it comes to the EPPO, 16 Member States notified the European Parliament, the Council, and the Commission on 3 April 2017 that they were willing to establish enhanced cooperation, 4 more indicated by letters their wish to participate in the establishment in the course of April and June 2017 (Latvia, Estonia, Austria, Italy). 59 Two more states – Malta 60 and the Netherlands 61 – joined in 2018 in accordance with the Commission Decisions. On the contrary, Estonia withdrew from enhanced cooperation on financial transaction tax. The Estonian government had addressed a letter to the Secretary-General of the Council communicating its decision to withdraw from enhanced cooperation and subsequently, the 51 Paras 43-44 of the judgment. 54 Commission Decision 2012/714/EU of 21 November 2012 confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 323, 22 November 2012, pp. 18-19. 55 Commission Decision 2014/39/EU of 27 January 2014 confirming the participation of Greece in enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 23, 28 January 2014, pp. 41-42. 56 Commission Decision (EU) 2016/1366 of 10 August 2016 confirming the participation of Estonia in enhanced cooperation in the area of the law applicable to divorce and legal separation, OJ L 216, 11 August 2016, pp. 23-25. 57 Commission Decision (EU) 2015/1753 of 30 September 2015 on confirming the participation of Italy in enhanced cooperation in the area of the creation of unitary patent protection, OJ L 256, 1 October 2015, pp. 19-20. 58 FRANCESCHELLI, M. L. Better late than never: Italy finally joins the Unitary Patent, 27 October 2015, available at: https://www.hoganlovells.com/en/news/better-late-than-never-italy-finally-joins-the-unitary-patent [Accessed: 1 June 2019]. 59 See recital 8 of the EPPO Regulation. 60 Commission Decision (EU) 2018/1103 of 7 August 2018 confirming the participation of Malta in the enhanced cooperation on the establishment of the European Public Prosecutor’s Office, OJ L 201, 8 August 2018, pp. 2-3. 61 Commission Decision (EU) 2018/1094 of 1 August 2018 confirming the participation of the Netherlands in the enhanced cooperation on the establishment of the European Public Prosecutor’s Office, OJ L 196, 2 August 2018, pp. 1-2. 52 Para 51 of the judgment. 53 Para 53 of the judgment.

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