European Parliament ticks its box for fast-track procedure on single EU patent
This article was originally published in Scrip
The European Parliament has voted in favour of pressing on with the proposed single EU patent under a special procedure that will leave Italy and Spain on the sidelines.
By a vote of 471 to 160, with 42 abstentions, parliament agreed to the use of the "enhanced co-operation" procedure to go ahead with the plan, which would create a unitary EU patent and patent court.
Enhanced co-operation is a last-resort mechanism designed to allow a minimum of nine member states to proceed with draft legislation where unanimity among member states is required but cannot be reached.
The use of the procedure in this case is backed by 11 member states and informally supported by another 12. As well as gaining European Parliament backing, it now has to be approved by the Council of Ministers, which is due to adopt a decision on 10 March.
Dissent
Italy and Spain are strongly opposed to the patent proposal on the grounds that the translation arrangements discriminate against their languages. Along with Cyprus and the Czech Republic, they are also opposed to using the enhanced co-operation procedure to go ahead with the proposal.
Following the 15 February vote, a number of Italian MEPs explained why they voted against or abstained, claiming among other things that the use of the enhanced co-operation procedure was incompatible with the EU Treaty and would fragment the internal EU market.
Several MEPs also pointed out that on 8 March the Court of Justice of the EU is due to give its opinion on whether the patent proposal is compatible with the EU Treaty, and said parliament should have waited until after the opinion before taking a vote.
However, a spokesperson for the parliament's legal affairs committee, which voted in favour in January, noted that today's vote was on the use of the enhanced co-operation procedure, not on the substance of the patent proposal itself.
Much does indeed depend on what the Court of Justice says about the patent proposal. Last year its advocate general declared that it was incompatible with the EU Treaty because it did not guarantee the primacy of EU law or provide adequate remedies if the patent court breached that law, and the proposed language regime was unacceptable in terms of respecting defendants' rights.
The court may well take the same view on 8 March. If it does, it could scupper the whole patent project. On the other hand, it could be that the court will make a number of recommendations for changing the proposal so that it is no longer incompatible with the treaty.