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22.3.2011 Official
Journal
of
the
European
Union L
76/53
DECISIONS
COUNCIL DECISION
of 10 March 2011
authorising enhanced cooperation in the area of the creation of unitary patent protection
(2011/167/EU)
THE COUNCIL OF THE EUROPEAN UNION,
protection throughout the Union and the establishment
of centralised Union-wide authorisation, coordination
and supervision arrangements.
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 329(1) thereof,
(3) On
5
July
2000,
the
Commission
adopted
a
proposal
for
a Council Regulation on the Community patent for the
creation of a unitary patent providing uniform protection
Having regard to the requests made by the Kingdom of
throughout the Union. On 30 June 2010, the
Belgium, the Republic of Bulgaria, the Czech Republic, the
Commission adopted a proposal for a Council Regulation
Kingdom of Denmark, the Federal Republic of Germany, the
on the translation arrangements for the European Union
Republic of Estonia, Ireland, the Hellenic Republic, the French
patent (hereinafter ‘the proposed Regulation on the trans
Republic, the Republic of Cyprus, the Republic of Latvia, the
lation arrangements’) providing for the translation
Republic of Lithuania, the Grand Duchy of Luxembourg, the
arrangements applicable to the European Union patent.
Republic of Hungary, Malta, the Kingdom of the Netherlands,
the Republic of Austria, the Republic of Poland, the Portuguese
Republic, Romania, the Republic of Slovenia, the Slovak
Republic, the Republic of Finland, the Kingdom of Sweden
(4) At
the
Council
meeting
on
10
November
2010,
it
was
and the United Kingdom of Great Britain and Northern Ireland,
recorded that there was no unanimity to go ahead with
the proposed Regulation on the translation arrangements.
It was confirmed on 10 December 2010 that insur
mountable difficulties existed, making unanimity
Having regard to the proposal from the European Commission,
impossible at the time and in the foreseeable future.
Since the agreement on the proposed Regulation on
the translation arrangements is necessary for a final
Having regard to the consent of the European Parliament,
agreement on unitary patent protection in the Union, it
is established that the objective to create unitary patent
protection for the Union could not be attained within a
reasonable period by applying the relevant provisions of
Whereas:
the Treaties.
(1) In
accordance
with
Article
3(3)
of
the
Treaty
on (5) In
these
circumstances,
12
Member
States,
namely
European Union (TEU), the Union shall establish an
Denmark, Germany, Estonia, France, Lithuania,
internal market, shall work for the sustainable devel
Luxembourg, the Netherlands, Poland, Slovenia, Finland,
opment of Europe based on balanced economic growth
Sweden and the United Kingdom, addressed requests to
and shall promote scientific and technological advance.
the Commission by letters dated 7, 8 and 13 December
The creation of the legal conditions enabling under
2010 indicating that they wished to establish enhanced
takings to adapt their activities in manufacturing and
cooperation between themselves in the area of the
distributing products across national borders and
creation of unitary patent protection on the basis of
providing companies with more choice and opportunities
the existing proposals supported by these Member
contributes to attaining this objective. A unitary patent
States during the negotiations and that the Commission
which provides uniform effects throughout the Union
should submit a proposal to the Council to that end. The
should feature amongst the legal instruments which
requests were confirmed at the meeting of the Council
undertakings have at their disposal.
on 10 December 2010. In the meantime, 13 more
Member States, namely Belgium, Bulgaria, the Czech
Republic, Ireland, Greece, Cyprus, Latvia, Hungary,
Malta, Austria, Portugal, Romania and Slovakia have
(2)
Pursuant to Article 118 of the Treaty on the Functioning
written to the Commission indicating that they also
of the European Union (TFEU) and in the context of the
wish to participate in the envisaged enhanced coop
establishment and functioning of the internal market,
eration. In total, 25 Member States have requested
measures should include the creation of uniform patent
enhanced cooperation.

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L 76/54
EN
Official Journal of the European Union
22.3.2011
(6) Enhanced
cooperation
should
provide
the
necessary
legal (11) Enhanced cooperation in the area of the creation of
framework for the creation of unitary patent protection
unitary patent protection aims at fostering scientific
in participating Member States and ensure the possibility
and technological advance and the functioning of the
for undertakings throughout the Union to improve their
internal market. The creation of unitary patent protection
competitiveness by having the choice of seeking uniform
for a group of Member States would improve the level of
patent protection in participating Member States, as well
patent protection by providing the possibility to obtain
as contributing to scientific and technological advance.
uniform patent protection throughout the territories of
the participating Member States and eliminate the costs
and complexity for those territories. Thus, it furthers the
objectives of the Union, protects its interests and rein
(7) Enhanced
cooperation
should
aim
at
creating
a
unitary
forces its integration process in accordance with
patent, providing uniform protection throughout the
Article 20(1) TEU.
territories of the participating Member States, which
would be granted in respect of all those Member States
by the European Patent Office (EPO). As a necessary part
of the unitary patent, the applicable translation
arrangements should be simple and cost-effective and
(12) The
creation
of
unitary
patent
protection
is
not
included
correspond to those provided for in the proposal for a
in the list of areas of exclusive competence of the Union
Council Regulation on the translation arrangements for
set out in Article 3(1) TFEU. The legal basis for the
the European Union patent, presented by the
creation of European intellectual property rights is
Commission on 30 June 2010, combined with the
Article 118 TFEU, which falls within Chapter 3 (Approxi
elements of compromise proposed by the Presidency in
mation of Laws) of Title VII (Common Rules on
November 2010 that had wide support in Council. The
Competition, Taxation and Approximation of Laws),
translation arrangements would maintain the possibility
and makes a specific reference to the establishment and
of filing patent applications in any language of the Union
functioning of the internal market, which is one of the
at the EPO, and would ensure compensation of the costs
shared competences of the Union according to Article 4
related to the translation of applications filed in
TFEU. The creation of unitary patent protection,
languages other than an official language of the EPO.
including applicable translation arrangements, therefore
The patent having unitary effect should be granted only
falls within the framework of the Union’s non-exclusive
in one of the official languages of the EPO as provided
competence.
for in the Convention on the Grant of European Patents
(European Patent Convention). No further translations
would be required without prejudice to transitional
arrangements which would be proportionate and
(13) Enhanced cooperation in the area of the creation of
require additional translations on a temporary basis,
unitary patent protection complies with the Treaties
without legal effect and purely for information
and Union law, and does not undermine the internal
purposes. In any case, transitional arrangements would
market or economic, social or territorial cohesion. It
terminate when high quality machine translations are
does not constitute a barrier to, or discrimination in,
made available, subject to an objective evaluation of
trade between Member States and does not distort
their quality. In case of a dispute, mandatory translation
competition between them.
obligations should apply to the patent proprietor.
(8) The
conditions
laid
down
in
Article
20
TEU
and
in (14) Enhanced cooperation in the area of the creation of
Articles 326 and 329 TFEU are fulfilled.
unitary patent protection respects the competences,
rights and obligations of non-participating Member
States. The possibility of obtaining unitary patent
protection on the territories of the Member States partici
pating does not affect the availability or the conditions of
(9) The
area
within
which
enhanced
cooperation
would
take
place, the establishment of measures for the creation of a
patent protection on the territories of non-participating
unitary patent providing protection throughout the
Member States. Moreover, undertakings from non-partici
Union and the setting-up of centralised Union-wide auth
pating Member States should have the possibility to
orisation, coordination and supervision arrangements, is
obtain unitary patent protection on the territories of
identified by Article 118 TFEU as one of the areas
the participating Member States under the same
covered by the Treaties.
conditions as undertakings from participating Member

States. Existing rules of non-participating Member States
determining the conditions of obtaining patent
protection on their territory remain unaffected.
(10) It
was
recorded
at
the
Council
meeting
on
10
November
2010 and confirmed on 10 December 2010 that the
objective to establish unitary patent protection within
the Union cannot be attained within a reasonable
(15) In
particular,
enhanced
cooperation
in
the
area
of
the
period by the Union as a whole, thus fulfilling the
creation of unitary patent protection would comply
requirement in Article 20(2) TEU that enhanced coop
with Union law on patents since enhanced cooperation
eration be adopted only as a last resort.
would respect pre-existing acquis.

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EN
22.3.2011 Official
Journal
of
the
European
Union L
76/55
(16) Subject
to
compliance
with
any
conditions
of
partici
Republic of Slovenia, the Slovak Republic, the Republic of
pation laid down in this Decision, enhanced cooperation
Finland, the Kingdom of Sweden and the United Kingdom of
in the area of the creation of unitary patent protection is
Great Britain and Northern Ireland are hereby authorised to
open at any time to all Member States willing to comply
establish enhanced cooperation between themselves in the
with the acts already adopted within this framework in
area of the creation of unitary patent protection, by applying
accordance with Article 328 TFEU,
the relevant provisions of the Treaties.
HAS ADOPTED THIS DECISION:
Article 2
Article 1
This Decision shall enter into force on the day of its adoption.
The Kingdom of Belgium, the Republic of Bulgaria, the Czech
Republic, the Kingdom of Denmark, the Federal Republic of
Germany, the Republic of Estonia, Ireland, the Hellenic
Done at Brussels, 10 March 2011.
Republic, the French Republic, the Republic of Cyprus, the
Republic of Latvia, the Republic of Lithuania, the Grand
For the Council
Duchy of Luxembourg, the Republic of Hungary, Malta, the
Kingdom of the Netherlands, the Republic of Austria, the
The President
Republic of Poland, the Portuguese Republic, Romania, the
CSFALVAY Z.

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