Outsourcing EU Law While Differentiating European Integration: the Unitary Patent's Identity in the Two "Spanish Rulings" of 5 May 2015

The judgments on the actions respectively brought by Spain against EU Regulation 1257/2012 and EU Regulation 1260/2012 give a green light to an unprecedented legislative technique of the EU Institutions, which is labelled here as “empty shell” (taking inspiration from the language of the applicant State in one of the rulings) or “outsourcing EU law”. Specifically EU Regulation 1257/2012 is the “empty shell” filled with content taken from domestic legislation and some international agreements. This article focuses on one specific aspect of such an “empty shell”: the “outsourcing” of the material rules for determining the scope of the right of an EPUE’s proprietor to prevent any third party from committing acts affecting the intellectual property covered by the said EPUE, including the applicable limitations. Furthermore, the two judgments are a follow-up to the previous Court of Justice’s ruling on the legality of the Council authorisation to start an enhanced co-operation in the area of unitary patent protection (Joint Cases C-274/11 and C-295/11).