CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … reach. It therefore seems evident that the rules on when to establish the „last resort“ are not clear in the Treaties. Thus, it can be argued that procedure of enhanced cooperation should not be used as a ‘last resort’ if there is a political dispute, as was clear in the cases brought to the CJEU by Spain and Italy. Enhanced cooperation should be used when a group of member states wants to further the objectives of the Union while others decide to join later or not to join at all. Here it seems that enhanced cooperation is used to circumvent a political dispute on language and that should never be a goal of European integration as stated by the CJEU: “it cannot validly be maintained that, by having it in view to create a unitary patent applicable in the participating Member States and not in the Union, the contested decision damages the internal market or the economic, social and territorial cohesion of the Union” 114 . Throughout the whole judgment of the CJEU, this is all that is being said on the claim of Spain and Italy concerning the infringement of Article 326 TFEU. It does not seem very well balanced to waive the possible effects on the internal market, especially concerning language systems and competition, with one sentence. Establishing a unitary patent in not all European member States will lead to territorial fragmentation since it does not cover the entire area of the internal market. It remains a valid question that should have deserved a more thorough analysis. While reviewing the effects of the unitary patent in the markets of the non-participating member states, one should bear in mind that there still remains the option to validate a classical national patent. Although this patent does not have a unitary effect, it protects the invention of the patent holder on its own territory. But, this of course creates a competitive disadvantage for the patent holder who needs to seek additional protection in all the other member states. For a patent holder who is living on the territory of a member state who adopted the patent regulation this results in a situation where he will be granted a patent with unitary effect for all Member States but has to request alternative national patents in (Italy) Spain and Croatia. It is therefore not completely unthinkable that a situation could arise where Spain as a non-participating state will face a competitive disadvantage over the participating member states. Although one can type this a chosen competitive disadvantage, this argument has not been assessed by the CJEU at all. If the proposed reconstruction is accessed, the problem arises of determining when the last-resort condition is to be satisfied. Given the flexible interpretation of this requirement that the CJEU has given in relation to the rules on enhanced cooperation, it does not seem necessary to await the outcome of the enhanced cooperation authorization procedure and to verify the existence of a blocking minority at the time of a vote form within the Council, on the other hand it must be considered sufficient to find the impossibility of proceeding at any stage of the procedure. Again on the basis of the principle of loyalty cooperation, it could be argued that the principle of openness should apply by analogy: an agreement between Member States whose object falls from the scope of competing competences should in principle be open to accession by other States members. This condition is especially relevant if the agreement in question provides for the allocation of functions to EU institutions or is otherwise likely to affect institutional balance.

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114 KUIPERS, J. The law applicable to divorce as a test ground for enhanced cooperation , op. cit.