Unitary patents: how Spain takes on the rest of Europe

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 (that's 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 -- 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.