The surprising request by the German Federal Constitutional Court (FCC) to the German President to wait with his executing of the UPC ratification law, pending the outcome of a – heretofore unknown – constitutional complaint, has made many people wonder what is behind this constitutional complaint and on which alleged violations of the German Basic Law (i.e. our constitution) this complaint was based.

I therefore asked the FCC directly what is going on here, and today, finally, received the following answer (my translation):

“In terms of substance, plaintiff is essentially asserting a breach of the limits to surrendering sovereignty that are derived from the right to democracy (Art. 38 (1), clause 1, Basic Law). Primarily the following violations are asserted:

• breach of the requirement for a qualified majority arising from Art. 23 (1), sentence 3, in conjunction with Art. 79 (2) Basic Law;
• democratic deficits and deficits in rule of law with regard to the regulatory powers of the organs of the UPC;
• the judges of the UPC are not independent nor do they have democratic legitimacy
• breach of the principle of openness towards European law owing to alleged irreconcilability of the UPC with Union law.

The proceedings are pending; a specific date for the decision is presently not foreseeable.”

I am not a specialist in constitutional law and respectfully ask that my following comments be therefore taken with a grain of salt. But just to give a little more background, let me point out the following:

Article 38(1) clause 1 BL states that “Members of the German Bundestag shall be elected in general, direct, free, equal and secret elections.” The FCC has derived from this clause a quite general and far-reaching right to democracy (Anspruch auf Demokratie). The argument goes like this: If an organ of the EU administers its sovereign powers contrary to the Basic Law, this would vacate the constitutional right to elect representatives to the German Bundestag. Therefore, an examination for compliance with the German Basic Law must be possible. This right to democracy is inalienable and must not be affected by Union Law.

Article 23(1) BL reads as follows:

(1) With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law. To this end the Federation may transfer sovereign powers by a law with the consent of the Bundesrat. The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Basic Law, or make such amendments or supplements possible, shall be subject to paragraphs (2) and (3) of Article 79.

Article 79(2) BL in turn relates to the possibility to amend the Basic Law and provides the following.

(1) This Basic Law may be amended only by a law expressly amending or supplementing its text. In the case of an international treaty regarding a peace settlement, the preparation of a peace settlement, or the phasing out of an occupation regime, or designed to promote the defence of the Federal Republic, it shall be sufficient, for the purpose of making clear that the provisions of this Basic Law do not preclude the conclusion and entry into force of the treaty, to add language to the Basic Law that merely makes this clarification.
(2) Any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat.
(3) Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

So it seems that Plaintiff argued that the German ratification law to the UPC is tantamount to a law that amends or supplements the Basic Law, or makes such amendments or supplements possible and hence is subject to paragraphs (2) and (3) of Article 79. If so, then a majority of two thirds of the Members of the Bundestag would have been necessary. However, when the ratification law was passed by the Bundestag, there were by far not enough members of the Bundestag present to satisfy this quorum.

If the constitutional complaint is successful on this point only, the German parliament would have to repeat the legislation process leading towards the ratification law and this time mind the requisite majority. This process could easily take a couple of months after the September 2017 election.

The second alleged violation of the BL is said to be based on democratic deficits and deficits in rule of law with regard to the regulatory powers of the organs of the UPC. I can only speculate that this ground alludes to the structure and (relatively far-reaching) powers of the UPC administrative committee, which is/are quite similar to the structure and powers of the administrative committee of the EPO and which are at least indirectly subject to four pending constitutional complaints in regard to the EPO, as reported earlier on this blog. Thus it seems that there is at least indirectly a connection between these cases.

The third alleged violation pertains to the perceived lack of an independent judiciary under the UPC. Perhaps (but this is my speculation based on Prof. Bross’ criticism to the EPO system) this is related to the fact that the judges are only appointed for six years, with a re-appointment being possible, but not guaranteed (Art. 4 UPC Statute).

The forth alleged violation seems to be substantially based on the argument that the UPC does not conform to EU law. We do not know more details, e.g. whether this argument has anything to do with the Brexit etc., but if this violation is seen as critical by the FCC for rendering its decision, I would think that it is very likely that the FCC will refer this particular question to the CJEU.

All in all, in view of the number and the complexity of the issues to be resolved by the FCC, I now consider it very unlikely that the UPC will be able to start in early 2018. More patience will probably be necessary, and perhaps much more.

For our German readers, the original information in German is reproduced below:

Der Beschwerdeführer macht inhaltlich im Wesentlichen die Verletzung der Grenzen für eine Übertragung von Hoheitsrechten geltend, die durch den Anspruch auf Demokratie (Art. 38 Abs. 1 Satz 1 GG) gezogenen werden. Vornehmlich werden die nachfolgend genannten Verstöße behauptet:
• Verstoß gegen das Erfordernis qualifizierter Mehrheit aus Art. 23 Abs. 1 Satz 3 in Verbindung mit Art. 79 Abs. 2 GG;
• Demokratische und rechtsstaatliche Defizite hinsichtlich der Rechtsetzungsbefugnisse der Organe des EPG;
• Mangelnde Unabhängigkeit und demokratische Legitimation der Richter des EPG;
• Verstoß gegen den Grundsatz der Europarechtsfreundlichkeit aufgrund behaupteter Unvereinbarkeit des Übereinkommens mit dem Unionsrecht.
Das Verfahren ist in Bearbeitung; ein konkreter Entscheidungstermin ist derzeit nicht absehbar.

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26 comments

  1. Excellent update – many thanks for asking that question! The only thing to add is that as the UK triggered Article 50 on 29 March 2017 – my understanding is that if the UPC is not in place before 29 March 2019 (i.e. before the UK leaves the EU) the UPC will effectively be dead – the UK can no longer sign up at that point as it will no longer be a member state and as the UK is hardwired into the treaty renegotiation will be required.

    1. “the UK is hardwired into the treaty”

      A lot of people appear to be convinced of this, but it actually isn’t true, apart from the London location of one branch of the Central Division (and several workarounds around this come to mind). Regarding the required ratifications, the treaty actually just says that they should include “the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place”. If the UK ceases to be a Member State, its place should usually be taken by Italy…which has already ratified.

  2. Remarkable news. Let me summarize: A lawyer from private practice is being provided by the BVerfG information on the complaint which, previously, it repeatedly had denied giving, even to the press (for which it was sometimes harshly criticized). Such apparent shifts in court behaviour do rarely occur as a mere coincidence. My prediction: The complaint will be rejected.

    1. To be honest, I do not think that this commentary is fair to the FCC. I tried to find out what is going on already in June, but was put on hold (like anyone else I suppose). It merely took the court some time to provide this summary, but I do not think that I am the only one who has received or will receive this (public) information at request. You may wonder why it took so long, okay, and I have no response to this question. Yet it is up to any interested citizen to ask the FCC for such information and sooner or later they will receive an answer. There has never been a refusal on principle.

      1. In principle, no problem with your approach, but: Since when are the contents of a court file public information (under German law)?

        1. This has nothing to do with file inspection. The Federal Constitutional Court generally publishes this kind of information as a courtesy to the public, just check their website and the cases provided for decision this year.

          1. Good point, just go and check what has been published on the “forecast page” re the proceedings involving the EPO. Have any arguments been made public? No. You will find a list of Grundgesetz provisions the violation of which is alleged in the complaint, together with the rather general statement that this related to “an insufficient legal protection at the European Patent Office against decisions by the Boards of Appeal”. With all due respect, the level of detail is apparently quite different from what you have received in the present context.

            Btw, re “there has never been a refusal on principle”: A whole commentary was published on this in the FAZ newspaper, the authoring journalist lamenting the court’s refusal to satisfy his request to let him know the legal arguments relied on in the complaint. Nice that your efforts to find out more paid off, but I think the question why it is suddenly possible what was not possible some weeks ago is a valid one.

  3. I like that they refer to a “konkreter Entscheidungstermin” that is not yet conceivable. That does not imply that they do not know in general when they want to issue their decision (as in “September 20th 2017, 14:00” (concrete) vs. “September 2017” (general). Yes, I am an optimist.

    In contrast to Prof. Bross’ opinion stated in an interview I do not think that the court should take its time and wait for Brexit. The implementing laws have passed both chambers and one could say that it is therfore the “expressed will of the people” that they come into force as quickly as possible. Accordingly, I do not see any room for the constitutional room to stall the proceedings to wait for the outcome of Brexit. They do not have a mandate to make politics. If they think the laws are unconstitutional they should be quick with their decision so that the government can react. If they think the laws are constitutional there is even less reason to stall and obstruct the legislative process just because Brexit might change something.

  4. Just to confirm that I contacted the court’s press officer who confirmed the content of the above blogpost to me today by email. Thorsten Bausch was simply quicker and took the initiative. All completely above board!

    1. Dear Birgit, how about just keeping quiet until it was you who took the initiative and brought something forward in this matter, instead of first questioning the legitimacy of Dr Bausch’s post and then, after – of course – it got confirmed, quickly moving back in line, now trying to pretend that you had any meaningful stake in this? Just awful.

      1. @Rhino

        I did not question Mr Bausch’s post at all. Where? I wrote to the court since it wasn’t on the BVerfG website and since another post enquired how Mr Bausch obtained the info. Well, the court will tell anyone if you ask them.

  5. I am not sharing B. Ogus’ opinion. It is anything but sure that the claim will be rejected. It seems to be standard practice in the Parliament to ratify treaties with just the members present and that the quorum is often not reached. As nobody has ever bothered, and since you cannot expect MPs to go themselves to the Constitutional Court, the question has never been put to it.

    In this respect Mr Stjerna has published an article on his home page:

    http://www.stjerna.de/index_htm_files/Unipat_pproc.pdf

    I am not in a position to say that the opinion brought forward in this paper is right or wrong, but if it is true that the quorum has not been respected, it means in practice that in the future the vote has to be redone, which is just a question of time. It seems however clear that there will be more urgent legal texts to be discussed when the parliament reconvenes after the election at the end of September.

    The German Constitutional Court (GCC) has never said that it would wait for a decision until after March 2019. In his paper in GRUR Int. 2017, 670blog, Professor Broß never suggested that the GCC should wait until Brexit. He simply suggested that the matter is too serious to be decided hastily. Peter Parker’s comment is thus also not fair.I vaguely remember that a corresponding suggestion was made somewhere, but I could not retrieve it quickly. I however doubt that the GCC would deliberately do so.

    There is however a further question for which I never heard a reply, be it directly or indirectly: why was the EPC draft not submitted to the CJEU? This could have avoided a series of problems, especially with Brexit. We would probably have been saved of one or more rather daring theories as to why UK could stay in the UPC after Brexit. Which I cannot believe for a second.

    If it was to avoid awaking sleeping dogs, it might backfire, as I take bets that a party succumbing at the UPC will find a way to address a question to the CJEU. And what then?

    What is however interesting in the plea before the GCC are not only the questions relating to the quorum, but other more fundamental and constitutional aspects of the UPC and its judges. Even if the question is not admitted by the GCC, it will take a while for the GCC to address the matter.

    I do not have a crystal ball, but my gut feeling is that the question will be admitted by the GCC, and then it might take a longer while to address the matter. That then possibly a decision may be issued by the GCC after March 2019 has nothing to do with deliberately trying to push the case until after this dead-line, but simply due to the working of the court.

  6. I find it somehow disheartening the way “rhino” attacked Birgit Clark.
    Even if at face value one could possibly think that her contribution was of little value, which I do not agree with, it does not warrant the nasty comments and malicious accusations.

    I am rather of the opinion that it is “rhino” who missed an opportunity to keep quite!
    He can be lucky that his reply has not been censored, which would have happened on other blogs.

    1. I entirely agree with this comment. I honor free speech and therefore did not delete this “bogus” comment, but I honestly found it quite borderline. Let us all engage in civilized debates based on facts and arguments ad rem on this blog. There is more than enough trash out elsewhere on the internet.

    2. Thanks Attentive observer. Of course my contribution was of very little value (in the overall picture), it was not meant to be earth shattering. However, it did what I wanted to achieve and confirmed that “Bogus” had been wrong suggesting that the BVerfG and/or Thorsten Bausch would do something that was somehow “underhand”. Indeed, the court quickly confirmed the information. Yes, it is a little disheartening but then again hiding behind a pseudonym …

  7. @Attentive observer:

    It appears to be clear that should the UCPA is not be sent to the CJEU in the course of the German constitutional complaint, this will happen in the first proceedings decided by the UPC. This will be the almost inevitable consequence for the losing party.

    But in that case, do you really think that the CJEU will bring down a decades-old project after it has advanced that far? Highly unlikely imho, see the inconsistent und legally questionable CJEU decision on Regulation 1257/12 (C-146/13), in which the court went pretty far to certify as lawful the doubful construction underlying the Regulation. Once the UPC opens its doors, my expectation is that the CJEU will not get in its way since they also have a political function which sometimes seems to be stronger than the legal one. The same is true, by the way, for the German BVerfG.

    1. I am not naive, and I am fully aware that lot of judgements of the CJEU are rather of political than of legal nature. The way the CJEU has dismissed Spain’s complaint and carefully avoided to touch the hot potatoes in the questions is a clear example of this. It even went so far that the CJEU expressed an obligation of cooperation for EU member states, but this was in respect of a Directive adopted in Parliament, not about a “private” treaty among some member states.

      When one sees the attitude of some more recent member states of central Europe, which even ignore rulings from the CJEU, one could come to the conclusion that the CJEU is a toothless tiger. I therefore do not expect too much from the CJEU, but the fact that the UPC is a private treaty implying the CJEU cannot be ignored by the latter.

      If the UPC was clearly a treaty under the EU, then I could understand that the CJEU would not like to endanger the whole system which has taken so much time to build. But the UPC system has been build next to the EU legal system, and like the dead-borne EPLA, it should have been submitted to the CJEU.

      I am curious to see what the German Constitutional Court will have to say. It might not rock the boat, but request some safeguards. And this would be good.

  8. To Birgit Clarck,

    I agree that it is anything but fair to bring forward the “rhino type comments” hiding behind a pseudo. My sense of justice was cringing when I read rhino’s comments, and I had to react.

    But in some circumstances a pseudo can help avoiding harm. It is not because an opinion goes against some vested interests that it should not be uttered. And then, a pseudo is a means which can help. This is my situation.

    Debating about concepts and ideas brings matters forward, and this is to be welcomed, even if it ends in not agreeing with each other. As long the debate is carried out with mutual respect, then it is good to debate.

    As for any coin there are two faces, but a pseudo should never be used to attack people personally.
    When using a pseudo for attacking people, anonymity becomes the courage of the cowards.
    This message is for all “rhino’s” of this world, and not just in the patent world.

  9. For the automated non-legally binding translations, be prepared that there will be appeals at the national level and up to the ECHR.

    Unfortunately, Germany, France or UK are not concerned about those automated translations under the UPC.

    Language discriminations cannot happen, even if the CJEU tolerates them.

    And that decision was a political one.

  10. The whole story has a fishy smell to it. It is rumoured that the plaintiff had suggested to the BVerfG the publication of a press statement when the complaint was filed. This was rejected. When the press started picking up the story in June, this suggestion was repeated and again rejected by the court. And now, upon a request by an individual from the patent field which also happens to be a prominent contributor to one of the largest blogs, the court supplies broad information about the arguments relied on in the complaint (which is unusual in itself) while others are still waiting for an official court communication on the proceedings? Believe it or not, we are talking about the highest court in Germany here!

    1. Everybody is entitled to his/her opinion, but I don’t share this one. Firstly, I am not in a position to confirm or rebut an alleged “rumour” about what the plaintiff did or did not suggest to the Federal Constitutional Court, but I dare say that if anybody had the full information about the grounds of this complaint, it was the plaintiff and nothing prevented him/her from publishing these grounds himself/herself. Secondly, am I too naïve to simply accept what I was told by the court’s press officer in late June, when I inquired for the first time, i.e. that the responsible judge or judges were not yet ready to inform the public about the reasons of this complaint? At least in my humble opinion, it takes a while to read a complex complaint and summarize it in a few sentences. Okay, maybe not two months, but please factor in that this court is indeed very busy and there were also summer holidays in the meantime. For the life of me, I cannot smell anything fishy here. This information could have been retrieved by anyone who was patient enough and kept gently asking for it.

      1. In my opinion, the only thing “fishy” is that the BVerfG asked the Federal President to not sign the laws without giving (at least the public) further information. In the same vein, if the Federal President had received more information from the court, he should have published it. We are dealing with a very sensitive area here, a law that has passed both chambers is stopped after all. There cannot be any room for secrecty without jeopardizing the fundamentals of democrazy.

  11. When will we see GRUR, the German Chamber of Patent Attorneys and let’s say BDI collecting among their members funds for commissioning a renowned constitutional law expert with the preparation of their version of the Gordon/Pascoe Opinion, this time on why the arguments asserted in the constitutional complaint are unfounded and why it must be rejected? If they hurry they could even publish this Opinion before Prof. Tilmann has sent to the BVerfG his Amicus Curiae letter on the same subject.

  12. I wonder where the comment has gone that I posted almost two days ago, it has not yet been released. My hope was that this author would be able to resist the censorship otherwise not uncommon on this blog, but maybe I was wrong.

    1. I just checked and saw a comment from you dated 19/8, so I assume this is it and the matter is now moot. Otherwise, I cannot at all share your opinion that “censorship is not uncommon on this blog”. At least to the extent that I am aware, there is no censorship whatsoever on this blog. Admittedly, it sometimes takes a while for the authors to check and approve new posts. This may sometimes be unsatisfactory, but it saves everybody from numerous “comments” that are quite clearly just spam.

  13. It is probably worth underlining that the BVerfG needs to formally adopt the complaint for a decision (which has not happened yet, at least to my knowledge), before starting a material assessment of the merits of the complaint. This often unnoticed procedural aspect may be the reason for the court’s unwillingness to disclose info on the case so far, as alleged by other commenters. Could the fact that they have now started providing more information on the case not be an indication that they may be tending to accept the complaint for a decision, different from what has sometimes been suggested here? If they wanted to reject the complaint anyway, which they could even do in a two-line decision without providing any reasons, I do not see why they would make the efforts to inform the public, let alone on an individual basis as they currently seem to do.

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