Innovation is one of the main topics on the agenda at the EU summit, which will also address the economic situation and recent developments in Tunisia and Egypt.
Regarding the innovation chapter, which is scheduled for the afternoon, leaders will discuss how to take "full advantage of Europe's intellectual capital," according to a briefing note.
The controversial issue of whether to use the enhanced cooperation procedure to set up an EU patent system will hover over the debate.
Italy isolated
Italy found itself isolated in December when eleven countries signed a letter requesting the European Commission to move forward on the patent issue without waiting for other countries. Another dozen said it was time to move forward using enhanced cooperation, leaving the door open for other countries to join at a later stage.
"There will likely be a short exchange of views on the issue," said an EU source, "but only if Berlusconi brings it forward".
Italian Prime Minister Silvio Berlusconi raised this issue in a letter sent on Friday (28 January) to European Council President Herman Van Rompuy and Commission President José Manuel Barroso.
He asked for progress to be made on the patent issue but underlined that there should be an agreement "respecting the integrity of the internal market and involving all member states".
However, with a packed summit agenda there is little appetite among European leaders to address the matter upfront.
The proposed new patent system, signed by 11 EU states and informally supported by another 12, would leave the remaining four out of the new patenting regime. Italy, Spain, Cyprus and the Czech Republic openly opposed the extraordinary procedure.
The European Commission and the European Parliament chose a fast-track approach to deal with the issue. The Parliament is expected to vote on the dossier during its plenary session in mid-February. And the Competitiveness Council on 10-11 March might formally launch the enhanced cooperation procedure, which has so far never been used on internal market issues.
Waiting for Court of Justice decision
The urgency with which the issue is being addressed is in part justified by the fact that a compromise on the EU patent has been the subject of many years of failed negotiations, contributing to a loss of competitiveness for European companies.
But many observers wonder why all this acceleration is coming just before a key ruling by the European Court of Justice which could bring down the entire plan.
"The Court will deliver its judgement on the EU patent at the beginning of March," a diplomatic source said.
The Court has been asked to assess the compatibility of the proposed new regime with the EU Treaties. Its final ruling is expected in March but the advocates-general of the Court have already issued a highly critical opinion of the plan.
"The agreement contemplated is, in its current state, incompatible with the treaties," the advocates-general said in July.
They also underlined that the linguistic system envisaged by the proposals "may affect the rights of defence".
A trilingual regime based on English, German and French indeed presents a problem to firms and researchers using other EU languages. In case of legal disputes, their ability to defend their positions may be affected, argue the advocates of the Court.
The opinion of the advocates-general is not binding on the Court, but final rulings have in most cases followed the line of the advocates' position.
France and Germany press for quick delivery
France and Germany stand accused of pushing for a fast-track approach which could ultimately favour their enterprises over European competitors. Yesterday (2 February), EU Internal Market Commissioner Michel Barnier, a Frenchman, was pushed by journalists to reiterate his position during a press conference in Brussels.
"I believe my proposal is acceptable and is the result of Belgian mediation. Many states supported the idea of proceeding faster. Everyone could later join," he said.
But the proposal is far from being considered acceptable by many civil society organisations. Opposition came even from within France. A French advocacy group promoting free software and representing almost 500 businesses is fiercely opposed to the enhanced cooperation mechanism.
So is the Foundation for a Free Information Infrastructure (FFII) and the End Software Patents (ESP) group, who have made a joint appeal. They asked the European Parliament to at least wait for the European Court ruling before giving its green light to the enhanced cooperation procedure.
