The Unitary Patent: New Rules for Internal Market Lawmaking?

Abstract

The EU’s patent plans look back on a long history of ups and downs. The ECJ has now dealt with different aspects of those plans, including the latest model that is now poised to enter into force, at three different occasions. That jurisprudence shifts from strict to relaxed, which invites speculation as to the reasons for that shift. More importantly however, the recently relaxed approach may have unforeseen and unwanted repercussions on integration dynamics in general: The novel legislative method of the UP Regulation might be a politically attractive, but legally dangerous tool for pushing flexibility in internal market integration far beyond the scope, possibilities and intention of territorial differentiation hitherto known under the classic mechanism of enhanced cooperation. In fact, the novel method complements territorial flexibility by allowing for flexibility in substantive law. This offers new possibilities, but also comes at higher costs for the unity, stability and coherence of EU integration and EU law.