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.

An interesting reminder on institutional culture and public service commitment: First speech by Clive Maxwell, new OFT's Chief Executive

The new Chief Executive of the Office of Fair Trading, Clive Maxwell, gave his first speech on 10 September 2012 at the RPI Annual Competition and Regulation Conference (http://www.oft.gov.uk/shared_oft/speeches/2012/0612.pdf). Even if he will only hold this post for about two years due to the already launched and significant reform of the UK's competition enforcement bodies (ie the establishment of the Competition and Markets Authority, which will take on the competition, markets and remaining consumer functions of the OFT plus all of those of the Competition Commission), I think that his speech is an interesting reminder of institutional culture and public service commitment that deserves praise and diffusion.
One of the keys to a strong delivery culture is to invest in people and their skills. Only then can we efficiently deliver high impact, outcomes across our portfolio. This is a critical issue not just for the OFT but for regulators more generally, and one that may get overlooked in the rush to discuss processes and procedures
I care about how we choose what we do, how we achieve change for the better in the real world most efficiently and effectively.
I led an ‘enforcement debate’ at the start of 2012 within the OFT, to identify what we at the OFT do well and less well, and the challenges we face in doing it even better. We also discussed these issues with similar bodies in the UK and abroad. I was especially struck that we need to look outside the competition and consumer community and more generally at the way in which other authorities – such as the FSA, the Serious Fraud Office and Her Majesty’s Revenue and Customs – tackle what are broadly similar challenges in addressing wrongdoing by businesses and individuals.
The conclusions to this work included three points:
• The importance of skills.
• The need for the right attitude –or culture– for successful enforcement work.
• The importance of intelligence.
What does this all show?For me, there are three important points to all of this.
The first is that while it is right that any agency needs to work hard at its processes and procedures, the skills and culture of the people in the organisation is at least as important. I believe that some of the potential for sharing such ideas between authorities remains to be exploited further. It is also the case that tackling this requires putting your money where your mouth is – skills development is an investment and it is important to recognise that this costs money. [...]
The second is that even where we are facing big organisational changes and uncertainty it is important to continue to invest time and effort doing things better. [...]
The third is that in running agencies such as the OFT it’s really important to continue to review how we do things, to experiment where needed, and to learn lessons from our own and others’ experiences. 

I hope that the observations I have made have some relevance to the challenges your organisations are facing. For me, delivery is about people and commitment, as well as processes, and we must not forget that our staff are the major driver of our organisations’ success
I think that this is a reflection of the instutional culture present in most market regulators (broadly understood) in the UK, and an important ingredient in the recipe for a smooth transition to the new institutional framework for competition law enforcement.

It seems to me too that there are many lessons to be learned by other competition authorities immersed in enforcement architecture redesign, such as the Spanish National Competition Commission–which remains in a state of shock since a reform similar to the UK's was hinted at in the last Spring.