Language of document :

Action brought on 10 June 2011 - Italian Republic v Council of the European Union

(Case C-295/11)

Language of the case: Italian


Applicant: Italian Republic (represented by: G. Palmieri, Agent, and S. Fiorentino, Avvocato dello Stato)

Defendant: Council of the European Union

Form of order sought

Annul Council Decision of 10 March 2011 authorising enhanced cooperation in the area of the creation of unitary patent protection (2011/167/EU)1;

order the Council of the European Union to pay the costs.

Pleas in law and main arguments

In support of its action, the Italian Republic raises four pleas in law.

First, it submits that the enhanced cooperation procedure was authorised by the Council outside the limits provided for in the first subparagraph of Article 20(1) TEU, according to which such a procedure is to be allowed only within the framework of the European Union's non-exclusive competences. The European Union has an exclusive competence to create 'European rules' which have Article 118 TFEU as their legal basis.

Second, it submits that the authorisation of enhanced cooperation in the present case is contrary to - or, in any event, not compatible with - the objectives in view of which such cooperation is provided for by the Treaties. In so far as that authorisation is contrary to, if not the letter, at least the spirit of Article 118 TFEU, it infringes Article 326(1) TFEU, in that the latter requires enhanced cooperation to comply with the Treaties and with EU law.

Third, the Italian Republic submits that the authorisation decision was adopted without an appropriate inquiry with regard to the last resort requirement and without an adequate statement of reasons on that point.

Lastly, according to the Italian Republic, the authorisation decision infringes Article 326 TFEU in that it adversely affects the internal market, introducing a barrier to trade between Member States and discrimination between undertakings, causing distortion of competition. Furthermore, it does not help to reinforce the EU's integration process, and is thus contrary to the second subparagraph of Article 20(1) TEU.


1 - OJ 2011 L 76, p. 53.