Whatever is left of the #EUCouncil? #CJEU 'Pringle' and the 'single European patent' judgments set a moving target

The CJEU dismissed Spain's and Italy's actions against the Council’s decision authorizing enhanced cooperation in the area of the single European patent. 

This should not come as a surprise, since the bottom line criterion to take into consideration (as stressed by the CJEU in its Judgment) is that, despite the unanimity requirement in Council decision-making in certain areas of competence, recalcitrant Member States cannot block the development of initiatives that have been sufficiently discussed (in this case, for more than 10 years) and that, in the end, does not damage the internal market or the economic, social and territorial cohesion of the EU. Fair enough.

This Judgment, however, raises two sets of issues that I consider relevant. 

On the one hand, and in a general context, taken together with the recent Pringle Judgment, the Single European Patent Judgment questions the role of the Council as the true political arena and stage for the development of key areas of EU Law. Particularly in view of the growing deference given to less than fully inclusive decisions--which, however, are bound to have a clear effect (and not necessarily a positive one) on the non-included (or self-excluded) Member States. This may completely alter the negotiation dynamics within the Council, since vetoes do not seem to be that effective anymore and, consequently, second-best settlements seem ever more desirable than jumping from a moving wagon.

On the other hand, and in the specific field of the single European patent mechanism, it remains to be seen at what cost will Spain and Italy join the system they have so far opposed--since, at least in terms of credibility, there is clearly a premium to be paid. It seems clear that the disadvantages of not participating are too high for these two Member States to continue refraining to join in (although political stubbornness may have no limits). Again, it seems that, in the future, Member States will need to consider the effort required to jump onto a moving train in case they consider not participating in 'threatened' enhanced cooperation initiatives.

All in all, these are interesting developments in EU law that seem to reopen the never-ending debate about institutional design and balance in competence allocation. It remains to be seen whether Pringle and Single European Patent will be outliers, or if there is a stronger underlying trend that will prompt future changes.