“统一的专利”

IF 16.4 1区化学 Q1 CHEMISTRY, MULTIDISCIPLINARY

Accounts of Chemical Research Pub Date : 2014-03-26 DOI:10.2139/ssrn.3257664

Massimo Barbieri

{"title":"“统一的专利”","authors":"Massimo Barbieri","doi":"10.2139/ssrn.3257664","DOIUrl":null,"url":null,"abstract":"In the context of the establishment and functioning of the internal market, the first paragraph of Art. 118 TFEU confers the competence to create European intellectual property rights and to set up, as regards those rights, centralized, Union-wide authorization, coordination and supervision arrangements. The competence, conferred by the second paragraph of Art. 118 TFEU, to establish language arrangements for those rights is closely bound up with the introduction of the latter and of the centralized arrangements referred to in the first paragraph of that Article. As a result, that competence too falls within the ambit of the functioning of the internal market. The expression “relevant provisions of the Treaties” in Art. 26(1) TFEU makes it clear that competences falling within the sphere of the internal market are not confined to those conferred by Arts. 114 and 115 TFEU relating to the adoption of harmonization measures but cover also any competence attaching to the objectives set out in Art. 26 TFEU, such as the competences conferred on the Union by Art. 118 TFEU. Although it is true that rules on intellectual property are essential in order to maintain competition undistorted on the internal market, they do not constitute “competition rules” for the purpose of Art. 3(1)(b) TFEU. The scope of, and arrangements for, exercising the Union’s competences in the area of “competition rules necessary for the functioning of the internal market” are determined in Part Three, Title VII, Chapter 1 of the TFEU, in particular in Arts. 101 to 109 TFEU. To regard Art. 118 TFEU as forming part of that area would therefore be contrary to Art. 2(6) TFEU and the result would be to extend unduly the scope of Art. 3(1)(b) TFEU. As such the competences conferred by Art. 118 TFEU fall within an area of shared competences for the purpose of Art. 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Art. 20(1) TEU. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. Nothing in Art. 20 TEU or in Arts. 326 to 334 TFEU forbids the Member States to establish between themselves enhanced cooperation within the ambit of those competences that must, according to the Treaties, be exercised unanimously. On the contrary, it follows from Art. 333(1) TFEU that, when the conditions laid down in Art. 20 TEU and in Arts. 326 to 334 TFEU have been satisfied, those powers may be used in enhanced cooperation and that, in that case, provided that the Council has not decided to act by qualified majority, it is the votes of only those Member States taking part that constitute unanimity. In addition, Art. 20 TEU and Arts. 326 to 334 TFEU do not circumscribe the right to resort to enhanced cooperation solely to the case in which at least one Member State declares that it is not yet ready to take part in the legislative action of the Union in its entirety. In accordance with Art. 20(2) TEU, the Council may not authorise enhanced cooperation except “as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole”. This condition is particularly important and must be read in the light of the second paragraph of Art. 20(1) TEU, which provides that enhanced cooperation is to “aim to further the objectives of the Union, protect its interests and reinforce its integration process”. The Union’s interests and the process of integration would not be protected if all fruitless negotiations could lead to one or more instances of enhanced cooperation, to the detriment of the search for a compromise enabling the adoption of legislation for the Union as a whole. In consequence, the expression “as a last resort” highlights the fact that only those situations in which it is impossible to adopt such legislation in the foreseeable future may give rise to the adoption of a decision authorising enhanced cooperation. It is apparent from the first paragraph of Art. 326 TFEU that the exercise, within the ambit of enhanced cooperation, of any competence conferred on the Union must comply with, among other provisions of the Treaties, that which confers that competence. The enhanced cooperation to which these actions relate must, therefore, be consistent with Art. 118 TFEU. With regard, on the other hand, to the expressions “throughout the Union” and “Union-wide” used in Art. 118 TFEU, it must be held that it is inherent in the fact that the competence conferred by that article is, in this instance, exercised within the ambit of enhanced cooperation that the European intellectual property right so created, the uniform protection given by it and the arrangements attaching to it will be in force, not in the Union in its entirety, but only in the territory of the participating Member States. Far from amounting to infringement of Art. 118 TFEU, that consequence necessarily follows from Art. 20(4) TEU, which states: “Acts adopted in the framework of enhanced cooperation shall bind only participating Member States”. It cannot be validly maintained that, by having it in view to create a unitary patent applicable in the participating Member States and not in the Union, the creation of unitary patent protection damages the internal market or the economic, social and territorial cohesion of the Union. While it is, admittedly, essential for enhanced cooperation not to lead to the adoption of measures that might prevent the non-participating Member States from exercising their competences and rights or shouldering their obligations, it is in contrast, permissible for those taking part in this cooperation to prescribe rules with which those non-participating States would not agree if they did take part in it. Indeed, the prescription of such rules does not render ineffective the opportunity for non-participating Member States of joining in the enhanced cooperation. As provided by the first paragraph of Art. 328(1) TFEU, participation is subject to the condition of compliance with the acts already adopted by those Member States that have taken part in that cooperation since it began. In the context of the establishment and functioning of the internal market, the first paragraph of Art. 118 TFEU confers the competence to create European intellectual property rights and to set up, as regards those rights, centralized, Union-wide authorization, coordination and supervision arrangements. The competence, conferred by the second paragraph of Art. 118 TFEU, to establish language arrangements for those rights is closely bound up with the introduction of the latter and of the centralized arrangements referred to in the first paragraph of that Article. As a result, that competence too falls within the ambit of the functioning of the internal market. The expression “relevant provisions of the Treaties” in Art. 26(1) TFEU makes it clear that competences falling within the sphere of the internal market are not confined to those conferred by Arts. 114 and 115 TFEU relating to the adoption of harmonization measures but cover also any competence attaching to the objectives set out in Art. 26 TFEU, such as the competences conferred on the Union by Art. 118 TFEU. Although it is true that rules on intellectual property are essential in order to maintain competition undistorted on the internal market, they do not constitute “competition rules” for the purpose of Art. 3(1)(b) TFEU. The scope of, and arrangements for, exercising the Union’s competences in the area of “competition rules necessary for the functioning of the internal market” are determined in Part Three, Title VII, Chapter 1 of the TFEU, in particular in Arts. 101 to 109 TFEU. To regard Art. 118 TFEU as forming part of that area would therefore be contrary to Art. 2(6) TFEU and the result would be to extend unduly the scope of Art. 3(1)(b) TFEU. As such the competences conferred by Art. 118 TFEU fall within an area of shared competences for the purpose of Art. 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Art. 20(1) TEU. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. Nothing in Art. 20 TEU or in Arts. 326 to 334 TFEU forbids the Member States to establish between themselves enhanced cooperation within the ambit of those competences that must, according to the Treaties, be exercised unanimously. On the contrary, it follows from Art. 333(1) TFEU that, when the conditions laid down in Art. 20 TEU and in Arts. 326 to 334 TFEU have been satisfied, those powers may be used in enhanced cooperation and that, in that case, provided that the Council has not decided to act by qualified majority, it is the votes of only those Member States taking part that constitute unanimity. In addition, Art. 20 TEU and Arts. 326 to 334 TFEU do not circumscribe the right to resort to enhanced cooperation solely to the case in which at least one Member State declares that it is not yet ready to take part in the legislative action of the Union in its entirety. In accordance with Art. 20(2) TEU, the Council may not authorise enhanced cooperation except “as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole”. This condition is particularly important and must be read in the light o","PeriodicalId":1,"journal":{"name":"Accounts of Chemical Research","volume":null,"pages":null},"PeriodicalIF":16.4000,"publicationDate":"2014-03-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"“Unitary Patent”\",\"authors\":\"Massimo Barbieri\",\"doi\":\"10.2139/ssrn.3257664\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"In the context of the establishment and functioning of the internal market, the first paragraph of Art. 118 TFEU confers the competence to create European intellectual property rights and to set up, as regards those rights, centralized, Union-wide authorization, coordination and supervision arrangements. The competence, conferred by the second paragraph of Art. 118 TFEU, to establish language arrangements for those rights is closely bound up with the introduction of the latter and of the centralized arrangements referred to in the first paragraph of that Article. As a result, that competence too falls within the ambit of the functioning of the internal market. The expression “relevant provisions of the Treaties” in Art. 26(1) TFEU makes it clear that competences falling within the sphere of the internal market are not confined to those conferred by Arts. 114 and 115 TFEU relating to the adoption of harmonization measures but cover also any competence attaching to the objectives set out in Art. 26 TFEU, such as the competences conferred on the Union by Art. 118 TFEU. Although it is true that rules on intellectual property are essential in order to maintain competition undistorted on the internal market, they do not constitute “competition rules” for the purpose of Art. 3(1)(b) TFEU. The scope of, and arrangements for, exercising the Union’s competences in the area of “competition rules necessary for the functioning of the internal market” are determined in Part Three, Title VII, Chapter 1 of the TFEU, in particular in Arts. 101 to 109 TFEU. To regard Art. 118 TFEU as forming part of that area would therefore be contrary to Art. 2(6) TFEU and the result would be to extend unduly the scope of Art. 3(1)(b) TFEU. As such the competences conferred by Art. 118 TFEU fall within an area of shared competences for the purpose of Art. 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Art. 20(1) TEU. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. Nothing in Art. 20 TEU or in Arts. 326 to 334 TFEU forbids the Member States to establish between themselves enhanced cooperation within the ambit of those competences that must, according to the Treaties, be exercised unanimously. On the contrary, it follows from Art. 333(1) TFEU that, when the conditions laid down in Art. 20 TEU and in Arts. 326 to 334 TFEU have been satisfied, those powers may be used in enhanced cooperation and that, in that case, provided that the Council has not decided to act by qualified majority, it is the votes of only those Member States taking part that constitute unanimity. In addition, Art. 20 TEU and Arts. 326 to 334 TFEU do not circumscribe the right to resort to enhanced cooperation solely to the case in which at least one Member State declares that it is not yet ready to take part in the legislative action of the Union in its entirety. In accordance with Art. 20(2) TEU, the Council may not authorise enhanced cooperation except “as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole”. This condition is particularly important and must be read in the light of the second paragraph of Art. 20(1) TEU, which provides that enhanced cooperation is to “aim to further the objectives of the Union, protect its interests and reinforce its integration process”. The Union’s interests and the process of integration would not be protected if all fruitless negotiations could lead to one or more instances of enhanced cooperation, to the detriment of the search for a compromise enabling the adoption of legislation for the Union as a whole. In consequence, the expression “as a last resort” highlights the fact that only those situations in which it is impossible to adopt such legislation in the foreseeable future may give rise to the adoption of a decision authorising enhanced cooperation. It is apparent from the first paragraph of Art. 326 TFEU that the exercise, within the ambit of enhanced cooperation, of any competence conferred on the Union must comply with, among other provisions of the Treaties, that which confers that competence. The enhanced cooperation to which these actions relate must, therefore, be consistent with Art. 118 TFEU. With regard, on the other hand, to the expressions “throughout the Union” and “Union-wide” used in Art. 118 TFEU, it must be held that it is inherent in the fact that the competence conferred by that article is, in this instance, exercised within the ambit of enhanced cooperation that the European intellectual property right so created, the uniform protection given by it and the arrangements attaching to it will be in force, not in the Union in its entirety, but only in the territory of the participating Member States. Far from amounting to infringement of Art. 118 TFEU, that consequence necessarily follows from Art. 20(4) TEU, which states: “Acts adopted in the framework of enhanced cooperation shall bind only participating Member States”. It cannot be validly maintained that, by having it in view to create a unitary patent applicable in the participating Member States and not in the Union, the creation of unitary patent protection damages the internal market or the economic, social and territorial cohesion of the Union. While it is, admittedly, essential for enhanced cooperation not to lead to the adoption of measures that might prevent the non-participating Member States from exercising their competences and rights or shouldering their obligations, it is in contrast, permissible for those taking part in this cooperation to prescribe rules with which those non-participating States would not agree if they did take part in it. Indeed, the prescription of such rules does not render ineffective the opportunity for non-participating Member States of joining in the enhanced cooperation. As provided by the first paragraph of Art. 328(1) TFEU, participation is subject to the condition of compliance with the acts already adopted by those Member States that have taken part in that cooperation since it began. In the context of the establishment and functioning of the internal market, the first paragraph of Art. 118 TFEU confers the competence to create European intellectual property rights and to set up, as regards those rights, centralized, Union-wide authorization, coordination and supervision arrangements. The competence, conferred by the second paragraph of Art. 118 TFEU, to establish language arrangements for those rights is closely bound up with the introduction of the latter and of the centralized arrangements referred to in the first paragraph of that Article. As a result, that competence too falls within the ambit of the functioning of the internal market. The expression “relevant provisions of the Treaties” in Art. 26(1) TFEU makes it clear that competences falling within the sphere of the internal market are not confined to those conferred by Arts. 114 and 115 TFEU relating to the adoption of harmonization measures but cover also any competence attaching to the objectives set out in Art. 26 TFEU, such as the competences conferred on the Union by Art. 118 TFEU. Although it is true that rules on intellectual property are essential in order to maintain competition undistorted on the internal market, they do not constitute “competition rules” for the purpose of Art. 3(1)(b) TFEU. The scope of, and arrangements for, exercising the Union’s competences in the area of “competition rules necessary for the functioning of the internal market” are determined in Part Three, Title VII, Chapter 1 of the TFEU, in particular in Arts. 101 to 109 TFEU. To regard Art. 118 TFEU as forming part of that area would therefore be contrary to Art. 2(6) TFEU and the result would be to extend unduly the scope of Art. 3(1)(b) TFEU. As such the competences conferred by Art. 118 TFEU fall within an area of shared competences for the purpose of Art. 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Art. 20(1) TEU. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. Nothing in Art. 20 TEU or in Arts. 326 to 334 TFEU forbids the Member States to establish between themselves enhanced cooperation within the ambit of those competences that must, according to the Treaties, be exercised unanimously. On the contrary, it follows from Art. 333(1) TFEU that, when the conditions laid down in Art. 20 TEU and in Arts. 326 to 334 TFEU have been satisfied, those powers may be used in enhanced cooperation and that, in that case, provided that the Council has not decided to act by qualified majority, it is the votes of only those Member States taking part that constitute unanimity. In addition, Art. 20 TEU and Arts. 326 to 334 TFEU do not circumscribe the right to resort to enhanced cooperation solely to the case in which at least one Member State declares that it is not yet ready to take part in the legislative action of the Union in its entirety. In accordance with Art. 20(2) TEU, the Council may not authorise enhanced cooperation except “as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole”. This condition is particularly important and must be read in the light o\",\"PeriodicalId\":1,\"journal\":{\"name\":\"Accounts of Chemical Research\",\"volume\":null,\"pages\":null},\"PeriodicalIF\":16.4000,\"publicationDate\":\"2014-03-26\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Accounts of Chemical Research\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.2139/ssrn.3257664\",\"RegionNum\":1,\"RegionCategory\":\"化学\",\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q1\",\"JCRName\":\"CHEMISTRY, MULTIDISCIPLINARY\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Accounts of Chemical Research","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.2139/ssrn.3257664","RegionNum":1,"RegionCategory":"化学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"CHEMISTRY, MULTIDISCIPLINARY","Score":null,"Total":0}

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摘要

在内部市场的建立和运作的背景下，TFEU第118条第1款赋予了创造欧洲知识产权的权限，并就这些权利建立集中的、全联盟范围的授权、协调和监督安排。《国际劳工条约》第118条第2款所赋予的为这些权利作出语言安排的权限，与采用后者以及该条第1款所述的集中安排密切相关。因此，这种能力也属于内部市场运作的范围。TFEU第26(1)条中“条约的有关规定”一词清楚地表明，属于内部市场范围的权限并不局限于TFEU第114条和第115条赋予的与采取协调措施有关的权限，还包括与TFEU第26条规定的目标有关的任何权限，例如TFEU第118条赋予欧盟的权限。虽然知识产权规则对于保持内部市场上的竞争不受扭曲至关重要，但就《欧盟自由贸易条约》第3条第1款(b)项而言，它们并不构成“竞争规则”。欧盟在“内部市场运作所必需的竞争规则”领域行使欧盟权限的范围和安排，在《欧盟内部竞争规则公约》第一章第七篇第三部分，特别是《欧盟内部竞争规则公约》第101至109条中确定。因此，将第118条TFEU视为该区域的一部分将违反第2(6)条TFEU，其结果将是不适当地扩大第3(1)(b)条TFEU的范围。因此，第118条tefeu赋予的权限属于第4条第(2)条tefeu中共享权限的范围，因此，就第20条第(1)条tefeu第一款而言，非排他性的。一项措施只有在根据客观、有关和一致的证据看来完全或至少主要不是为了授予有关权力的目的而采取的，或者是为了逃避《条约》为处理案件情况而具体规定的程序时，才会因滥用权力而受到损害。TEU第20条或TEU第326至334条均未禁止成员国之间在根据条约必须一致行使的权限范围内建立加强的合作。相反，从TFEU第333(1)条可以得出，当第20条TEU和第326至334条TFEU规定的条件得到满足时，这些权力可以用于加强合作，在这种情况下，如果理事会没有决定以特定多数采取行动，则只有参加的成员国的投票才构成一致意见。此外，第20条TEU和第326至334条TEU并没有限制诉诸加强合作的权利，只有在至少有一个成员国宣布它尚未准备好参加整个联盟的立法行动的情况下。根据TEU第20(2)条，理事会不得授权加强合作，除非“作为最后手段，当它确定这种合作的目标不能在整个联盟的合理期限内实现时”。这一条件特别重要，必须根据TEU第20(1)条第2款来理解，该条规定，加强合作的目的是“促进联盟的目标，保护其利益并加强其一体化进程”。如果所有无果的谈判都可能导致一次或多次加强合作，就不会保护欧洲联盟的利益和一体化进程，从而损害寻求妥协，以便为整个欧洲联盟通过立法。因此，“作为最后手段”一词突出了这样一个事实，即只有在可预见的将来不可能通过这种立法的情况下，才可能通过一项授权加强合作的决定。从《欧盟条约》第326条第1款可以明显看出，在加强合作的范围内行使赋予欧盟的任何权限，除条约的其他规定外，必须遵守赋予该权限的规定。因此，这些行动所涉及的加强合作必须符合《条约》第118条。另一方面，关于《公约》中使用的“整个联盟”和“全联盟”的说法。在内部市场的建立和运作的背景下，TFEU第118条第1款赋予了创造欧洲知识产权的权限，并就这些权利建立集中的、全联盟范围的授权、协调和监督安排。《国际劳工条约》第118条第2款所赋予的为这些权利作出语言安排的权限，与采用后者以及该条第1款所述的集中安排密切相关。因此，这种能力也属于内部市场运作的范围。TFEU第26(1)条中“条约的有关规定”一词清楚地表明，属于内部市场范围的权限并不局限于TFEU第114条和第115条赋予的与采取协调措施有关的权限，还包括与TFEU第26条规定的目标有关的任何权限，例如TFEU第118条赋予欧盟的权限。虽然知识产权规则对于保持内部市场上的竞争不受扭曲至关重要，但就《欧盟自由贸易条约》第3条第1款(b)项而言，它们并不构成“竞争规则”。欧盟在“内部市场运作所必需的竞争规则”领域行使欧盟权限的范围和安排，在《欧盟内部竞争规则公约》第一章第七篇第三部分，特别是《欧盟内部竞争规则公约》第101至109条中确定。因此，将第118条TFEU视为该区域的一部分将违反第2(6)条TFEU，其结果将是不适当地扩大第3(1)(b)条TFEU的范围。因此，第118条tefeu赋予的权限属于第4条第(2)条tefeu中共享权限的范围，因此，就第20条第(1)条tefeu第一款而言，非排他性的。一项措施只有在根据客观、有关和一致的证据看来完全或至少主要不是为了授予有关权力的目的而采取的，或者是为了逃避《条约》为处理案件情况而具体规定的程序时，才会因滥用权力而受到损害。TEU第20条或TEU第326至334条均未禁止成员国之间在根据条约必须一致行使的权限范围内建立加强的合作。相反，从TFEU第333(1)条可以得出，当第20条TEU和第326至334条TFEU规定的条件得到满足时，这些权力可以用于加强合作，在这种情况下，如果理事会没有决定以特定多数采取行动，则只有参加的成员国的投票才构成一致意见。此外，第20条TEU和第326至334条TEU并没有限制诉诸加强合作的权利，只有在至少有一个成员国宣布它尚未准备好参加整个联盟的立法行动的情况下。根据TEU第20(2)条，理事会不得授权加强合作，除非“作为最后手段，当它确定这种合作的目标不能在整个联盟的合理期限内实现时”。这一条件特别重要，必须根据TEU第20(1)条第2款来理解，该条规定，加强合作的目的是“促进联盟的目标，保护其利益并加强其一体化进程”。如果所有无果的谈判都可能导致一次或多次加强合作，就不会保护欧洲联盟的利益和一体化进程，从而损害寻求妥协，以便为整个欧洲联盟通过立法。因此，“作为最后手段”一词突出了这样一个事实，即只有在可预见的将来不可能通过这种立法的情况下，才可能通过一项授权加强合作的决定。从《欧盟条约》第326条第1款可以明显看出，在加强合作的范围内行使赋予欧盟的任何权限，除条约的其他规定外，必须遵守赋予该权限的规定。因此，这些行动所涉及的加强合作必须符合《条约》第118条。另一方面，关于《公约》中使用的“整个联盟”和“全联盟”的说法。第118条TFEU，必须认为，该条所赋予的权限在这种情况下是在加强合作的范围内行使的，这一事实是固有的，即这样创造的欧洲知识产权、它所给予的统一保护和附带的安排将不是在整个联盟内有效，而是只在参与成员国的领土内有效。这种后果远不等于违反第118条tefeu，而是必然源于第20条第4款TEU，该条规定:“在加强合作框架内通过的行为应仅约束参与的成员国”。不能有效地认为，通过建立适用于参与成员国而不适用于联盟的统一专利，建立统一专利保护损害了内部市场或联盟的经济、社会和领土凝聚力。诚然，加强合作必须不导致采取可能阻止非参与会员国行使其权限和权利或承担其义务的措施，但相反，允许参加这种合作的国家制定规则，而这些非参与国家如果参加这种合作就不会同意这些规则。事实上，这种规则的规定并没有使不参加的会员国加入加强合作的机会失去效力。按照《条约》第328(1)条第一款的规定，参与的条件是遵守自该合作开始以来就参加该合作的会员国已经通过的法案。在内部市场的建立和运作的背景下，TFEU第118条第1款赋予了创造欧洲知识产权的权限，并就这些权利建立集中的、全联盟范围的授权、协调和监督安排。《国际劳工条约》第118条第2款所赋予的为这些权利作出语言安排的权限，与采用后者以及该条第1款所述的集中安排密切相关。因此，这种能力也属于内部市场运作的范围。TFEU第26(1)条中“条约的有关规定”一词清楚地表明，属于内部市场范围的权限并不局限于TFEU第114条和第115条赋予的与采取协调措施有关的权限，还包括与TFEU第26条规定的目标有关的任何权限，例如TFEU第118条赋予欧盟的权限。虽然知识产权规则对于保持内部市场上的竞争不受扭曲至关重要，但就《欧盟自由贸易条约》第3条第1款(b)项而言，它们并不构成“竞争规则”。欧盟在“内部市场运作所必需的竞争规则”领域行使欧盟权限的范围和安排，在《欧盟内部竞争规则公约》第一章第七篇第三部分，特别是《欧盟内部竞争规则公约》第101至109条中确定。因此，将第118条TFEU视为该区域的一部分将违反第2(6)条TFEU，其结果将是不适当地扩大第3(1)(b)条TFEU的范围。因此，第118条tefeu赋予的权限属于第4条第(2)条tefeu中共享权限的范围，因此，就第20条第(1)条tefeu第一款而言，非排他性的。一项措施只有在根据客观、有关和一致的证据看来完全或至少主要不是为了授予有关权力的目的而采取的，或者是为了逃避《条约》为处理案件情况而具体规定的程序时，才会因滥用权力而受到损害。TEU第20条或TEU第326至334条均未禁止成员国之间在根据条约必须一致行使的权限范围内建立加强的合作。相反，从TFEU第333(1)条可以得出，当第20条TEU和第326至334条TFEU规定的条件得到满足时，这些权力可以用于加强合作，在这种情况下，如果理事会没有决定以特定多数采取行动，则只有参加的成员国的投票才构成一致意见。此外，第20条TEU和第326至334条TEU并没有限制诉诸加强合作的权利，只有在至少有一个成员国宣布它尚未准备好参加整个联盟的立法行动的情况下。依照艺术。第118条TFEU，必须认为，该条所赋予的权限在这种情况下是在加强合作的范围内行使的，这一事实是固有的，即这样创造的欧洲知识产权、它所给予的统一保护和附带的安排将不是在整个联盟内有效，而是只在参与成员国的领土内有效。这种后果远不等于违反第118条tefeu，而是必然源于第20条第4款TEU，该条规定:“在加强合作框架内通过的行为应仅约束参与的成员国”。不能有效地认为，通过建立适用于参与成员国而不适用于联盟的统一专利，建立统一专利保护损害了内部市场或联盟的经济、社会和领土凝聚力。诚然，加强合作必须不导致采取可能阻止非参与会员国行使其权限和权利或承担其义务的措施，但相反，允许参加这种合作的国家制定规则，而这些非参与国家如果参加这种合作就不会同意这些规则。事实上，这种规则的规定并没有使不参加的会员国加入加强合作的机会失去效力。按照《条约》第328(1)条第一款的规定，参与的条件是遵守自该合作开始以来就参加该合作的会员国已经通过的法案。在内部市场的建立和运作的背景下，TFEU第118条第1款赋予了创造欧洲知识产权的权限，并就这些权利建立集中的、全联盟范围的授权、协调和监督安排。《国际劳工条约》第118条第2款所赋予的为这些权利作出语言安排的权限，与采用后者以及该条第1款所述的集中安排密切相关。因此，这种能力也属于内部市场运作的范围。TFEU第26(1)条中“条约的有关规定”一词清楚地表明，属于内部市场范围的权限并不局限于TFEU第114条和第115条赋予的与采取协调措施有关的权限，还包括与TFEU第26条规定的目标有关的任何权限，例如TFEU第118条赋予欧盟的权限。虽然知识产权规则对于保持内部市场上的竞争不受扭曲至关重要，但就《欧盟自由贸易条约》第3条第1款(b)项而言，它们并不构成“竞争规则”。欧盟在“内部市场运作所必需的竞争规则”领域行使欧盟权限的范围和安排，在《欧盟内部竞争规则公约》第一章第七篇第三部分，特别是《欧盟内部竞争规则公约》第101至109条中确定。因此，将第118条TFEU视为该区域的一部分将违反第2(6)条TFEU，其结果将是不适当地扩大第3(1)(b)条TFEU的范围。因此，第118条tefeu赋予的权限属于第4条第(2)条tefeu中共享权限的范围，因此，就第20条第(1)条tefeu第一款而言，非排他性的。一项措施只有在根据客观、有关和一致的证据看来完全或至少主要不是为了授予有关权力的目的而采取的，或者是为了逃避《条约》为处理案件情况而具体规定的程序时，才会因滥用权力而受到损害。TEU第20条或TEU第326至334条均未禁止成员国之间在根据条约必须一致行使的权限范围内建立加强的合作。相反，从TFEU第333(1)条可以得出，当第20条TEU和第326至334条TFEU规定的条件得到满足时，这些权力可以用于加强合作，在这种情况下，如果理事会没有决定以特定多数采取行动，则只有参加的成员国的投票才构成一致意见。此外，第20条TEU和第326至334条TEU并没有限制诉诸加强合作的权利，只有在至少有一个成员国宣布它尚未准备好参加整个联盟的立法行动的情况下。依照艺术。 20(2) TEU，理事会不得授权加强合作，除非“作为最后手段，当它确定这种合作的目标不能在合理的时间内由整个联盟实现”。这个条件是特别重要的，必须在灯光下阅读 20(2) TEU，理事会不得授权加强合作，除非“作为最后手段，当它确定这种合作的目标不能在合理的时间内由整个联盟实现”。这个条件是特别重要的，必须在灯光下阅读

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“Unitary Patent”

In the context of the establishment and functioning of the internal market, the first paragraph of Art. 118 TFEU confers the competence to create European intellectual property rights and to set up, as regards those rights, centralized, Union-wide authorization, coordination and supervision arrangements. The competence, conferred by the second paragraph of Art. 118 TFEU, to establish language arrangements for those rights is closely bound up with the introduction of the latter and of the centralized arrangements referred to in the first paragraph of that Article. As a result, that competence too falls within the ambit of the functioning of the internal market. The expression “relevant provisions of the Treaties” in Art. 26(1) TFEU makes it clear that competences falling within the sphere of the internal market are not confined to those conferred by Arts. 114 and 115 TFEU relating to the adoption of harmonization measures but cover also any competence attaching to the objectives set out in Art. 26 TFEU, such as the competences conferred on the Union by Art. 118 TFEU. Although it is true that rules on intellectual property are essential in order to maintain competition undistorted on the internal market, they do not constitute “competition rules” for the purpose of Art. 3(1)(b) TFEU. The scope of, and arrangements for, exercising the Union’s competences in the area of “competition rules necessary for the functioning of the internal market” are determined in Part Three, Title VII, Chapter 1 of the TFEU, in particular in Arts. 101 to 109 TFEU. To regard Art. 118 TFEU as forming part of that area would therefore be contrary to Art. 2(6) TFEU and the result would be to extend unduly the scope of Art. 3(1)(b) TFEU. As such the competences conferred by Art. 118 TFEU fall within an area of shared competences for the purpose of Art. 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Art. 20(1) TEU. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. Nothing in Art. 20 TEU or in Arts. 326 to 334 TFEU forbids the Member States to establish between themselves enhanced cooperation within the ambit of those competences that must, according to the Treaties, be exercised unanimously. On the contrary, it follows from Art. 333(1) TFEU that, when the conditions laid down in Art. 20 TEU and in Arts. 326 to 334 TFEU have been satisfied, those powers may be used in enhanced cooperation and that, in that case, provided that the Council has not decided to act by qualified majority, it is the votes of only those Member States taking part that constitute unanimity. In addition, Art. 20 TEU and Arts. 326 to 334 TFEU do not circumscribe the right to resort to enhanced cooperation solely to the case in which at least one Member State declares that it is not yet ready to take part in the legislative action of the Union in its entirety. In accordance with Art. 20(2) TEU, the Council may not authorise enhanced cooperation except “as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole”. This condition is particularly important and must be read in the light of the second paragraph of Art. 20(1) TEU, which provides that enhanced cooperation is to “aim to further the objectives of the Union, protect its interests and reinforce its integration process”. The Union’s interests and the process of integration would not be protected if all fruitless negotiations could lead to one or more instances of enhanced cooperation, to the detriment of the search for a compromise enabling the adoption of legislation for the Union as a whole. In consequence, the expression “as a last resort” highlights the fact that only those situations in which it is impossible to adopt such legislation in the foreseeable future may give rise to the adoption of a decision authorising enhanced cooperation. It is apparent from the first paragraph of Art. 326 TFEU that the exercise, within the ambit of enhanced cooperation, of any competence conferred on the Union must comply with, among other provisions of the Treaties, that which confers that competence. The enhanced cooperation to which these actions relate must, therefore, be consistent with Art. 118 TFEU. With regard, on the other hand, to the expressions “throughout the Union” and “Union-wide” used in Art. 118 TFEU, it must be held that it is inherent in the fact that the competence conferred by that article is, in this instance, exercised within the ambit of enhanced cooperation that the European intellectual property right so created, the uniform protection given by it and the arrangements attaching to it will be in force, not in the Union in its entirety, but only in the territory of the participating Member States. Far from amounting to infringement of Art. 118 TFEU, that consequence necessarily follows from Art. 20(4) TEU, which states: “Acts adopted in the framework of enhanced cooperation shall bind only participating Member States”. It cannot be validly maintained that, by having it in view to create a unitary patent applicable in the participating Member States and not in the Union, the creation of unitary patent protection damages the internal market or the economic, social and territorial cohesion of the Union. While it is, admittedly, essential for enhanced cooperation not to lead to the adoption of measures that might prevent the non-participating Member States from exercising their competences and rights or shouldering their obligations, it is in contrast, permissible for those taking part in this cooperation to prescribe rules with which those non-participating States would not agree if they did take part in it. Indeed, the prescription of such rules does not render ineffective the opportunity for non-participating Member States of joining in the enhanced cooperation. As provided by the first paragraph of Art. 328(1) TFEU, participation is subject to the condition of compliance with the acts already adopted by those Member States that have taken part in that cooperation since it began. In the context of the establishment and functioning of the internal market, the first paragraph of Art. 118 TFEU confers the competence to create European intellectual property rights and to set up, as regards those rights, centralized, Union-wide authorization, coordination and supervision arrangements. The competence, conferred by the second paragraph of Art. 118 TFEU, to establish language arrangements for those rights is closely bound up with the introduction of the latter and of the centralized arrangements referred to in the first paragraph of that Article. As a result, that competence too falls within the ambit of the functioning of the internal market. The expression “relevant provisions of the Treaties” in Art. 26(1) TFEU makes it clear that competences falling within the sphere of the internal market are not confined to those conferred by Arts. 114 and 115 TFEU relating to the adoption of harmonization measures but cover also any competence attaching to the objectives set out in Art. 26 TFEU, such as the competences conferred on the Union by Art. 118 TFEU. Although it is true that rules on intellectual property are essential in order to maintain competition undistorted on the internal market, they do not constitute “competition rules” for the purpose of Art. 3(1)(b) TFEU. The scope of, and arrangements for, exercising the Union’s competences in the area of “competition rules necessary for the functioning of the internal market” are determined in Part Three, Title VII, Chapter 1 of the TFEU, in particular in Arts. 101 to 109 TFEU. To regard Art. 118 TFEU as forming part of that area would therefore be contrary to Art. 2(6) TFEU and the result would be to extend unduly the scope of Art. 3(1)(b) TFEU. As such the competences conferred by Art. 118 TFEU fall within an area of shared competences for the purpose of Art. 4(2) TFEU and are, in consequence, non-exclusive for the purpose of the first paragraph of Art. 20(1) TEU. A measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. Nothing in Art. 20 TEU or in Arts. 326 to 334 TFEU forbids the Member States to establish between themselves enhanced cooperation within the ambit of those competences that must, according to the Treaties, be exercised unanimously. On the contrary, it follows from Art. 333(1) TFEU that, when the conditions laid down in Art. 20 TEU and in Arts. 326 to 334 TFEU have been satisfied, those powers may be used in enhanced cooperation and that, in that case, provided that the Council has not decided to act by qualified majority, it is the votes of only those Member States taking part that constitute unanimity. In addition, Art. 20 TEU and Arts. 326 to 334 TFEU do not circumscribe the right to resort to enhanced cooperation solely to the case in which at least one Member State declares that it is not yet ready to take part in the legislative action of the Union in its entirety. In accordance with Art. 20(2) TEU, the Council may not authorise enhanced cooperation except “as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole”. This condition is particularly important and must be read in the light o

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来源期刊

Accounts of Chemical Research 化学-化学综合

CiteScore

31.40

自引率

1.10%

发文量

312

审稿时长

2 months

期刊介绍： Accounts of Chemical Research presents short, concise and critical articles offering easy-to-read overviews of basic research and applications in all areas of chemistry and biochemistry. These short reviews focus on research from the author’s own laboratory and are designed to teach the reader about a research project. In addition, Accounts of Chemical Research publishes commentaries that give an informed opinion on a current research problem. Special Issues online are devoted to a single topic of unusual activity and significance. Accounts of Chemical Research replaces the traditional article abstract with an article "Conspectus." These entries synopsize the research affording the reader a closer look at the content and significance of an article. Through this provision of a more detailed description of the article contents, the Conspectus enhances the article's discoverability by search engines and the exposure for the research.