All Union law arguments against the Unitary Patent system, that are now on the table again because of the German constitutional complaint, have already been rejected in the recent past. Wouter Pors, partner of Bird & Bird, has said this in an interview with Kluwer IP Law. Pors hopes the Federal Constitutional Court (FCC) will reject the complaint and the UP system will start as soon as possible. ‘It’s like having a brand new car in the garage, but not being allowed to drive it.’

How much delay do you expect as a consequence of the procedure before the FCC against UPCA ratification?

‘Let me start by saying that I am giving you my personal views and I have to admit that, after having put a lot of effort into supporting the revolutionary improvement which I think the UPC and the Unitary Patent are, I am frustrated by the way some people are trying to create confusion or throw sand into the gears.

It is hard to predict how much delay the German constitutional case will cause. One can only hope that the Constitutional Court will take into account that 14 countries have already ratified, thereby indicating that they want the new system and the UK is consistently working towards ratification. I hope the Constitutional Court will also take into account that the CJEU has already looked at all the Union law issues 4 times until now (Opinion 01/09, the joint decision on the Italian and Spanish appeals in 2013 (C-274/11 and C‑295/11) and the two Spanish appeals in 2015 (C-146/13 and C-147/13)); all arguments that are now on the table again have basically already been rejected.

In addition to that, I am not aware of any major industry or industry association saying that they wouldn’t like to have the UPC. The sad truth is that the only opposition currently comes from lawyers who probably fear for their livelihood because they realise they can’t face the competition in the UPC system and from other critics who only have a theoretical interest. For those critics, there are no valuable patent portfolios at stake. They don’t have an interest in tech driven companies that for the majority of their stock value rely on intangibles, such as intellectual property.

Wouter Pors

In these times of uncertainty, it is easy to echo that there is uncertainty. It would have been helpful if the critics would have declared their position and motivation. I have always been clear about my position. So, it should be no surprise that I definitely disagree with the content of Mr. Stjerna’s complaints and I hope they are rejected by the Constitutional Court.’

Is the delay bad for the new system? Are there advantages as well?

‘Of course, the delay is bad. The UPC is basically ready to open for business, but now we have to wait for the outcome of the German constitutional case. Over the past years an increasing number of the major users of the patent system have become confident that the UPC will be their court of preference, as it offers substantial benefits over the current shattered national jurisdiction. Obviously, this means that they want to be able to actually start using it, but now everybody has to wait. It’s like having a brand new car in the garage, but not being allowed to drive it. Of course, this is also a disappointment for the candidate-judges.

The delay may be an advantage for law firms wo are not ready for the new system, as they can continue business as usual for some time.’

Apart from the German procedure, it seems the Brexit could also cause problems. There is a debate whether the UK can stay in the UP system post-Brexit, and if it can keep its local division and branch of the central division. In the UK however, the parliamentary procedure to complete the ratification process goes on as planned. How is this possible?

‘The UK currently is still an EU Member State and has said that it will continue to fulfil its obligations until the Brexit is a fact, which will be on 29 March 2019. A study commissioned by the UK government some years ago showed that the UPC has huge economic benefits for London. In addition, the UK has always played an important role in patent litigation in Europe and wants to continue that role. The UPC is not an EU institution, as it is based on a multilateral agreement. It is quite clear that the UK wants to continue to play an international role after Brexit, to which end it plans to conclude international agreements. Participation in the UPC is beneficial to both the UK and the continental European countries, since a strong Europe-wide system is very important for a good climate for research and development in Europe. Meanwhile, the Scottish parliament has completed all necessary steps for ratification by the end of October and the Westminster parliament can pick up the process for those final steps again as it has now appointed the members of the Joint Committee on Statutory Instruments on 31 October.

I have no doubt that there is no legal reason why the UK couldn’t stay part of the UPC after Brexit. There also is no reason to relocate the London local division or the London seat of the central division. These are not UK courts, but divisions of an international court. The fact that they – as divisions of this international court – would have to refer issues to the CJEU therefore as such doesn’t affect the UK sovereignty. I have published about this before and so have others.

Actually, most of the people who doubt that this is feasible do so without really having studied the issue. I’m always puzzled by lawyers who just say that there’s a lot of uncertainty, without really dealing with the issue. I don’t understand what purpose is served by that. When I was in Tilburg University, professor Schoordijk had a special term for that approach: “think laziness”. However, there are so many of those messages on the internet, that they could be mistaken for an actual contribution to the debate, which they are not. Actually, I have seen very few well-founded arguments why the UK would not be able to continue its participation in the UPC.

On the other hand, a continued participation in the Unitary Patent does require some additional legal measures, but this could be achieved as part of the Brexit negotiations. You need to keep in mind that the UK was one of the founding fathers of the Unitary Patent, which was only created when the EU itself was unable to come up with a solution. There is no desire to change any of the characteristics of the Unitary Patent, so the only issue is to create an additional formal legal basis to allow the UK to continue its participation. This discussion is totally different from the discussion on EU unitary rights, such as the EU trade mark; the Unitary Patent was not imposed on the UK by the EU.’

Are preparations for the UPC and Unitary Patent going on as planned at Bird & Bird, despite the German and Brexit issues? What do these preparations consist of?

‘I can’t say it’s going on as planned, as we have to adapt the time schedule all the time, but it’s certainly going on. Of course, we continue to share all the information that we can collect, since we have already been advising our clients on the consequences and opportunities of the UPC and the Unitary Patent for quite some time and we want to provide them with accurate and up-to-date information. We’re also working on a comprehensive book and on some new software tools.

The biggest challenge however is how we will organize our patent litigation practice in future. The UPC will be a real game changer. Firms that do not prepare may not survive. The message that I get from industry more and more is that patent litigation teams that operate independently on an office-by-office basis without an integrated European-wide approach will not be sufficient anymore. According to those views, teams should not be organized by geographic location, but based on expertise and client focus.

If for instance you need to litigate an electronics case in Budapest, you shouldn’t be solely dependent on the people available on the ground; you need to have them, but in my view, they should be integrated into an international dedicated team. You should realize that in the eyes of scientists (such as inventors) lawyers are really strange animals in this respect. Lawyers are used to practice national law and are therefore organized on a country-by-country basis, but scientists of course are not. There is no such thing as French physics, so there is no purpose to make national divisions in research and development in a multinational company.

For lawyers however, this is a totally new concept. At Bird & Bird we have the advantage that we are aware of this and we are discussing it. I don’t pretend that we have already completely solved the issue nor that we have already completely re-created ourselves as the truly European patent law litigators who have abandoned their national law roots, but we’re discussing, and we will be ready to deliver when the UPC opens and the clients demand a new approach.

By the way, I’m very curious what my competitors from the other patent law firms have to say to this.’

Are you still active at the Training Centre in Budapest? If so, can you give an impression of your experience there?

‘There have been two extensive courses of training for judges with relatively little experience in patent litigation. This was sufficient to cover that group of candidates as it existed at that time. For me, this was a very positive experience, since we lectured to a group of bright judges with a keen interest in international patent law. Next to the official subject that I taught, I had in-depth discussions on some of the more complex issues of patent law during the coffee and lunch breaks. I’m looking forward to seeing those judges participate in UPC panels.

The next stage is the educational program on the UPC procedures itself, but that will only start when there is more clarity on the actual appointments and the start date. Basically, the provisional application phase is needed for that.’

For regular updates on the Unitary Patent and the Unified Patent Court, subscribe to this blog and the free Kluwer IP Law Newsletter.

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39 comments

  1. Who else than Mr Pors could come up with such statements? I have rarely seen such a pro-domo stance. It is simply flabbergasting to read.

    When talking about the CJEU, Opinion 1/09 was the death knell of EPLA as not conform to Union law. If Mr Pors would be so sure that the UPC is conform to Union law, why does he not advocate that the UPC is submitted for agreement to the CJEU before it enters into force? As a good lawyer, he would certainly find a way.

    Mr Pors may have “no doubt that there is no legal reason why the UK couldn’t stay part of the UPC after Brexit”. But this opinion is not shared by lots of other people. Has he never seen the number of mentions of Union law in the UPCA? They give a different impression.

    When he sees “no reason to relocate the London local division or the London seat of the central division” as “these are not UK courts, but divisions of an international court”, said international court has direct links with the EUCJ. I respect the opinion he has expressed in his paper of Nov. 29, 2016, but I have not seen any other paper, beside that of Prof. Tilmann, claiming this. And after Opinion 1/09, Prof. Tilmann expressed exactly the opposite position:only member states of the EU could participate in a Unitary Patent. The famous Gordon-Pascoe paper is also much more prudent in those matters. It does not exclude a post Brexit UK participation, but is certainly not as affirmative. Lots of ifs have to find a reply.

    Even if Mr Pors has not seen “very few well-founded arguments why the UK would not be able to continue its participation in the UPC”, one can turn the compliment round: are his arguments so well founded that they border on certainty? There is still a lot to do, even when calling upon Art 142EPC.

    Simply saying that “all arguments that are now on the table again have basically already been rejected” is an oversimplification of the real situation. That the Italian, and more precisely the Spanish, complaints have been dismissed is one thing, but by no means the questions now at stake have received an answer by the CJEU.

    Mr Pors’ statement that the complaints stems from “lawyers who probably fear for their livelihood because they realise they can’t face the competition in the UPC system and from other critics who only have a theoretical interest”, is bordering on insult for those concerned. I do not necessarily agree with Mr Stjerna’s opinion, but his opinion is as respectable as Mr Pors’ one, and does not deserve to be belittled in such a derogatory way.

    In the same vein one can classify the statement according to which “the delay may be an advantage for law firms who are not ready for the new system, as they can continue business as usual for some time”. What an arrogance!

    On the other hand Mr Pors’ statement makes it clear that the great beneficiaries of the UPC are “major industry[ies] or industry association[s]”. Where are the much heralded SMEs? They are apparently not on Mr Pors’ radar.

    It might be worth reminding here that maximum a third of the patents filed at the EPO have their origin in EU member states.

    It is thus easy to see which the prime beneficiaries ot the UPC are. Not even European industry as such, but European industry acting globally. Which European industry needs a patent in 25 countries? Even one hand would be too large to count.

    It is interesting to note that apparently only industry able to afford using “an international dedicated team” have a chance in the future battles. Here is another revealing statement of the state of mind of Mr Pors.

    I have more than a theoretical interest not to see European industry, and more so European SMEs, to be pushed in a corner. To reassure Mr Pors, I am a convinced European, but his Europe is not the Europe I want to fight for.

    By the way in a recent publication seen on Kluwer IP News Alerts, Volume No. 2017, Issue No. 22, 02 November 2017, Eckert Seamans Cherin & Mellott, do not find the UPC so wonderful:

    https://tradinginsider.fr/2017/10/new-european-unitary-patent-is-not-so-wonderful/

    I will stop now, as I do not want to get angrier about this whole blog, but, please Mr Pors, stop taking us for a ride.

    This comment is not to be used by Techrights be it directly or indirectly!

  2. Does Mr Pors’ statement that “the only opposition currently comes from lawyers who probably fear for their livelihood because they realise they can’t face the competition in the UPC system and from other critics who only have a theoretical interest” qualify as an ad hominen attack on identifiable individuals? Even if not, it is certainly “bad form” to criticise purported motivations of your opponents, instead of actually addressing the legal points that they have raised.

    As a “critic” of the UPC, I have to say that I find the general tone of Mr Pors’ comments to be unpleasant, verging on ignorant.

    As just one example, Mr Pors states that he has “seen very few well-founded arguments why the UK would not be able to continue its participation in the UPC”. My response to that statement would be that Mr Pors has either not been looking in the right places or has not appreciated the true significance of the arguments that he has seen.

    As pointed out in a comment by Proof of the Pudding on IPKat (http://ipkitten.blogspot.co.uk/2017/04/the-upc-after-brexit-is-cjeu.html), the CJEU stated the following in Opinion 1/09:
    “It must be emphasised that the situation of the PC envisaged by the draft agreement would differ from that of the Benelux Court of Justice which was the subject of Case C 337/95 Parfums Christian Dior [1997] ECR I 6013, paragraphs 21 to 23. Since the Benelux Court is a court common to a number of Member States, situated, consequently, within the judicial system of the European Union, its decisions are subject to mechanisms capable of ensuring the full effectiveness of the rules of the European Union”.

    Thus, the CJEU views it as being crucial that the FULL EFFECTIVENESS of the rules of the EU are ensured.

    This raises many questions. Firstly, how can “full effectiveness” of EU rules be ensured with respect to the UK once it is no longer a Member State of the EU? More importantly, if the UPC is NOT actually “a court common to a number of Member States” (which is a crucial assumption in the Gordon and Pascoe opinion), how can its decisions be “subject to mechanisms capable of ensuring the full effectiveness of the rules of the European Union”? For example, what legal basis would enable such an international court (that is, a court that is neither part of the EU’s legal systems nor part of the national legal systems of the EU Member States) to make preliminary references to the CJEU on points of EU law? Article 267 TFEU cannot be relied upon, as that only applies to “any court or tribunal of a MEMBER STATE”.

    In short, it is at present (that is, in the absence of any details of the post-Brexit legal arrangements between the UK and the EU) impossible to understand how the UPC can simultaneously comply with EU law and permit the post-Brexit participation of the UK.

    But this is just the tip of the iceberg. There are also the other grounds in the constitutional complaint (which, despite Mr Pors’s attempts to suggest otherwise, have NEVER been considered by the CJEU). There is also Mr Pors’ failure to recognise that one can be a critic of the UPC whilst still being in favour of the concept of a “unified” court. In this regard, I must emphasise that the only reason that I am sceptical about the CURRENT VERSION of the UPC is that it contravenes EU and national legal norms and introduces serious “democratic deficits”.

    I would have no problem with an alternative, more carefully constructed version of the UPC that properly respected EU law (including the principle of legitimate expectations) and all relevant constitutional laws. But no such version of the UPC exists. Thus, the sad fact is that the existence of the current complaint can be directly attributed to failures of the architects of the UPCA (particularly failure to heed repeated criticisms of flaws in the drafting and/or proposed implementation of the Agreement). I would therefore suggest that the reasons for Mr Pors’ current frustrations are much closer to home than he may think.

  3. A very entertaining read indeed. This “interview” is so full of wishful thinking and badly distorted facts that one starts wondering whether Mr Pors really thinks that the readers are utterly stupid, clueless or both. The fact that Pors et al are now starting attacks like these is underlining what an essential threat the German complaint is to the UPC – on which they are so eager and have waited so long to cash in on. And more than that: The complaint points the finger at fundamental shortcomings which Pors and his ilk, who were closely involved in the UPC preparations, were obviously unable to identify and address. Or they knew and trusted that nobody would find out? One way or the other, Pors & Partner do not look too good here which may be one of the reasons for this angry attack. At some point, we will see whether the German Constitutional Court also thinks that the complaint raises merely “arguments that have all been rejected already”. I would not count on it.

  4. Mr Pors states that he has “seen very few well-founded arguments why the UK would not be able to continue its participation in the UPC”.
    As someone working with patents, Mr Pors should know that one well founded argument is sufficient.
    When deciding novelty, one document may be enough. The three hundred million other documents available worldwide may not be an argument against lack of novelty. But the sheer amount of irrelevance does not make the claim novel, when there is one document already disclosing all.

    I do not envy the judges of the FCC their task to decide on every single allegation. But, as far as I have seen, Mr Stjerna did a good job of keeping the weaker arguments out, thus simplifying the task of the FCC judges considerably. I have not had the chance to read the full complaint yet, so maybe there are all the arguments of the sides with money lying to the delegates of the people in there too, but the statement published by the court was rather “clean”, and all of those arguments have merit, in my humble opinion, but I’ll leave that for the FCC to decide.

    I found this an interesting read in the sense that I saw only old arguments, which have already been countered, repeated and referred to, but no countering the counterarguments.
    It also showed me how making propaganda works by repetition of the same arguments over and over again.

  5. Even smart people seem to slowly understand that the UPC is dead, which makes them somehow loose countenance. 
    The UPC is dead, be it only because it has now become evident that the Unitary Patent is to be issued by an organization which has got out of control, and which – by its attacks on the Boards of Appeal and on its individual  members – has irreparably destroyed its most fragile and essential asset, the existence of a truly independent judiciary. This will not be accepted by the FCC.
    To follow on Mr Pors’ comparison with having a brand new car in the garage, but not being allowed to drive it, it is as as if someone had entered the garage in the eyes of all those smart people and had systematically destroyed the brakes and steering of the car without anyone reacting and these smart people now blame others for the car being just good for scrap.

  6. The supporters of the constitutional complaint should welcome unreflected statements like those by Mr Pors as they facilitate presenting him and his ilk to the court as what they are: Self-centered and arrogant opportunists willing to sacrifice almost anything, in particular truth and decency, and to take any view if only it helps serving their agenda, which is filling their coffers in the UPC system of their design. It would be fun seeing similiar interviews with Mr Mooney, Mr Hoyng or Mr Tilmann and see how they rid themselves of the last little bit of credibility they still have left, just as Mr Pors has done here.

  7. After having seen the bashing Mr Pors got, I doubt that Mr Mooney, Hoyng and Tilmann will come up in public with their views.

    I do not think that Mr Pors has uttered unreflected statements, he was genuine. He was probably not aware that his speech is a perfect example of propaganda or self suggestion. He simply didn’t realize the significance of what he was saying. He is too obsessed to bring alive what he and other have concocted behind closed doors. He cannot accept that all that he invested might never materialise, and his return on investment will be zero. In his view, he has every reason to refuse the announced defeat. As a good lawyer the arguments are just there to fit his views.

    It is rare to witness such a denial of reality. And sad at the same time.

    By the way, did even Kluwer Blog realised the significance of Mr Pors’ words? I have some doubts. But at least one has to positively acknowledge that the posting of critical views is to be put on Kluwer’s credit.

    The question of the UPC is not to be confused with the situation at the EPO and what has happened to the Boards of Appeal of the EPO. Here other complaints are running before the GFCC and they should not have an a direct significance for the present one, as the questions raised are quite different, even if one might consider that they have some connection.

    I doubt that the GFCC would blow up an existing agreement, like the EPC, but it could end up by requesting from the German government to propose some changes. A diplomatic conference as provided for in the EPC is more than overdue.

    The UPC is not yet active, and blowing it up would not have the same effect as for the EPO. After all, members of the GFCC are sensible lawyers, even if their mode of designation is highly political. I am therefore relying on their wisdom.

    This comment is not to be used by Techrights be it directly or indirectly!

  8. @Stop taking us for a ride

    One aspect to consider is that Mr Pors is a rather hot-headed character, suffice it to say here that this got him into trouble in his firm more than once. My impression is that his statements in the interview are the result of an uncontrolled, pretentious temper trying to deal with the situation at hand while realising that the desired UPC project may be nearing its terminal collapse. It looks that he cannot find a way to convincingly counter the arguments asserted in the constitutional complaint, so that he instead relies on personal attacks, maybe hoping to undermine these arguments by targeting the opponents’ integrity.

    The pitiful situation he is in is evidenced by his hope “that the Constitutional Court will take into account that 14 countries have already ratified, thereby indicating that they want the new system”, his “argument” apparently being that the declared intent of these countries, which can be assumed not to have been aware of the legal issues now at hand and the legal systems of which may not foresee a judicial assessment under constitutional law, should be attributed significance by a constitutional court when assessing the lawfulness of the UPCA. More than this, he seems to hold the position that this intent should be given precedence over the Agreement’s compatibility with Union law and German constitutional law. I think this shows where the lack of integrity truly lies. An exercise in clutching at straws could hardly be given a more desperate appearance.

  9. The points set out in this article seem correct. The complaint, from what I understand from those who reviewed it, raises arguments that have been dealt with as part of drafting the UPCA, so no CJEU referral is needed, are not the type of issues the FCC will find justified, or involve a procedural issue specific to DE ratification. If that is the case the complaint will likely be dismissed on all matters of substance. The FCC is a serious court and seeking comments is matter of care and the comments collected show the weakness of the complaint. Those that know the complaint say that the complaint objects to the EPC/EPO as an association that disregards obligations of DE constitutional law and the ECHR. The EPC is treaty among sovereign European nations. Even if the assertion were true, which is not the case, it ignores that the EPC Member States are, to a large degree, allowed to do so, with DE constitutional concerns addressing specific outcomes. Similar arguments have questioned the legality of EuroControl. This shows the fundamental flaw with the arguments – they prove too much. No organization, perhaps not even the UN, EU or the CJEU itself, will offer a perfect level of protection, which the substantive arguments suggest is required. Choices get made by these groups, with an ambiguous impact on democratic process. Why is appointing a judge for life certain to provide democratic protection compared to appointments for a number of years? From what I have been told, the complaint should be dismissed as to substance. Others that understand the procedural issue may have insights on that point.

  10. What is the aim pursued by “commentator”? Most of his statement is a better form of hearsay, certainly not prime information.

    Just a few examples: – The points ….. seem correct – what I understand from those who reviewed it – . Those that know the complaint say – From what I have been told….- Others that understand….

    If “commentator” knows what he is talking about, could he explain, or ask those who “told him”, which were the “arguments that have been dealt with as part of drafting the UPCA, so no CJEU referral is needed”. Fact is that the UPCA has been concocted behind closed doors, by a select group of people. This is also one of the gripes brought forward by Mr Stjerna. By saying this, I do not say that he was right or wrong, the mere fact cannot be denied and is surprising to say the least.

    If no referral to the CJEU is apparently needed, why was the UPCA not forwarded to the CJEU as it was the case with EPLA? If there is no risk, what could be the reason not to do so? In the absence of proper arguments, this statement is a mere allegation, and at best wishful thinking.

    The same goes for the following statement: “Even if the assertion were true, which is not the case,…”. Please present arguments!

    The legality of Eurocontrol was indeed challenged before the GFCC, and the claim has indeed been dismissed. At his speech at the Max-Plan-Institute, Prof. Broß explained why, and why the fact there are not comparable with the present one. During this speech, Prof. Broß explained as well why giving judges only five years contracts was not acceptable from a democratic point of view, the more so since renewal of a member’s contract is linked with production objectives, see R 12d EPC.

    It is also true that, a few years ago, a complaint relating to the EPO was filed before the GFCC. It was not dismissed as to the substance, but was simply not admitted, since the arguments brought forward were not sufficient to admit it, which is a different story. The FGCC has thus not dismissed in substance a complaint against the EPO, as can be heard sometimes.

    Even if the GFCC might eventually dismiss the complaint, which is anything but sure, the efforts put to light by the court in asking for amicus curiae briefs, shows that the matter is serious, and cannot simply be dismissed at once.

    I consider “commentator’s” statement nothing more than a desperate attempt to support Mr Pors, and the promoters of the UPC. I leave readers to judge whether this effort was fruitful or not.

  11. Dear ‘commentator’ @11/05/17:

    Is it a coincidence that the only person endorsing Mr Pors’ views here up to now has apparently not the faintest idea what he/she is talking about, relying on (seemingly fabricated) hearsay?

    For instance, re ‘the comments collected show the weakness of the complaint’ you may want to consider that no comments have been ‘collected’ yet, as is pretty much common knowledge. So which comments are you referring to?
    The same applies to ‘those that know the complaint’ and the allegation that it objected the EPC/EPO violating German constitutional law and the ECHR. Utter nonsense, at least for the UPCA complaint.

    None of the points you unfold play any role, other than probably this: ‘Others that understand the procedural issue[s] may have insights on that point.’

  12. What is the aim pursued by “commentator”? Most of his statement is a better form of hearsay, certainly not prime information.

    Just a few examples: – The points ….. seem correct – what I understand from those who reviewed it – . Those that know the complaint say – From what I have been told….- Others that understand….

    If “commentator” knows what he is talking about, could he explain, or ask those who “told him”, which were the “arguments that have been dealt with as part of drafting the UPCA, so no CJEU referral is needed”. Fact is that the UPCA has been concocted behind closed doors, by a select group of people. This is also one of the gripes brought forward by Mr Stjerna. By saying this, I do not say that he was right or wrong, the mere fact cannot be denied and is surprising to say the least.

    If no referral to the CJEU is apparently needed, why was the UPCA not forwarded to the CJEU as it was the case with EPLA? If there is no risk, what could be the reason not to do so? In the absence of proper arguments, this statement is a mere allegation, and at best wishful thinking.

    The same goes for the following statement: “Even if the assertion were true, which is not the case,…”. Please present arguments!

    The legality of Eurocontrol was indeed challenged before the GFCC, and the claim has indeed been dismissed. At his speech at the Max-Plan-Institute, Prof. Broß explained why, and why the facts there are not comparable with the present one. During this speech, Prf. Broß explained as well why giving judges only five years contracts was not acceptable from a democratic point of view, the more so since renewal of a member’s contract is linked with production objectives, see R 12d EPC.

    It is also true that, a few years ago, a complaint relating to the EPO was filed before the GFCC. It was dismissed not as to the substance, but was simply not admitted, which is a different story. The FGCC has thus not dismissed in substance a complaint against the EPO, as can be heard sometimes.

    Even if the GFCC might eventually dismiss the complaint, which is anything but sure, the efforts put to light by the court in asking for amicus curiae briefs, shows that the matter is serious, and cannot simply be dismissed.

    I consider “commentator’s” statement nothing more than a desperate attempt to support Mr Pors, and the promoters of the UPC. I leave readers to judge whether this effort was fruitful or not.

  13. @Commentator

    Please do explain in more detail why “no CJEU referral is needed” simply because the arguments raised in the constitutional complaint “have been dealt with as part of drafting the UPCA”.

    Are you saying that the answer under EU law (or German constitutional law) to each ground of objection is acte éclairé? If so, I must have missed the relevant court judgements, and so would be very grateful if you could please point me to them.

    Of course, I do not think that you can seriously be suggesting that compliance of the UPCA with all relevant laws is acte clair. That would be absurd.

    For example, take a look at the points that I make above regarding the (problematic) post-Brexit participation of the UK in the UPCA. The key question there is: is the UPCA “a court common to the (EU) Member States”? Are we to believe that the answer to this (rather important) question is acte clair? If so, please do provide us with the benefit of your insight. That is, should we believe the UPCA (which suggests that the answer is “yes”), or instead the Gordon and Pascoe opinion (which argues that the answer is “no”)?

    By the way, I would not be so confident that the BVerfG will dismiss the complaint. This is because, as I understand it, the complaint in part relies upon non-compliance of the EPO appeals procedure with German constitutional law. The fact that the BVerfG has already taken up two cases that address the very same point means that it would be completely inconsistent for the court to dismiss the new complaint out of hand.

  14. Walter Pors hits the core of the problem: Most of the comments shows that major opposition to the UPC comes from patent attorneys/lawyers angry to meet the requirements of a new pan European system because they feel not fit for such a challenging system. These guys should remember that those who are late will be punished by life. Thus, it will be definitely not a good idea to find at least a straw to catch in the German complaint at the FCC. The ruling could be disappointing for them!

  15. Conversely, the major support for the UPC comes from patent attorneys and lawyers who are set to profit massively if/when the UPC comes into existence. Particular support comes from firms who have UPC divisions set up and ready to go because if the UPC doesn’t start they will have wasted significant investment in those divisions and will have lost future profits they are banking on. Those guys should remember that they should be working to provide Europe with the best patent system, not working to line their own pockets.

    More and more it seems like the backers of the UPC in the legal profession view themselves as the ticket holders on a gravy train and are getting angry when observers suggest that their gravy train is not in the public interest.

  16. To HSP,

    Your arrogance is at the same level of that of Mr Pors. And on top of it, your statement is incorrect.

    When you see for instance that the Litigators course at the Centre Européen et International de la Propriété Intellectuelle (CEIPI) of the Strasbourg University, has to limit the number of participants as the number of applications goes over its capacity, and this for years, it shows that a lot of actors in IP are preparing themselves to the UPC. Even the difficulties stemming from Brexit have not discouraged applicants to the course. Yes they are not lawyers, but patent attorneys which come there.

    I do not know the figures for the Fernuniversität Hagen (Hagen 2 certificate), or Queen Mary, but I guess that there as well, the number of participants is high.

    As good professionals they simply want to be well prepared, should the UPC enters into force. This does not mean whatsoever that all those people necessary agree with everything that Pors and consorts trumpet around.

    One reason also for them, is not to let some lawyers firms, which have contributed to the rules of procedure, either tell them what they want, and hence abuse their credulity, or are the only ones which will be able to line their pockets as “It’s all gravy” said.

    It is not a surprise that the lawyers firms which presently are the strongest supporters of the UPC, are those which concocted behind closed doors the rules of procedure.

    Why was there never a public appeal of competences in order to draft the rules of procedure? This is the generic defect of the UPC. How can a small bunch of people, moreover having co-opted each other, claim that only what they have devised is best for the European IP community in matter of patent litigation and validation?

    There is a fundamental difference between a UPC which is forced down upon our throats at any cost, and agreeing that more harmonisation in IP matters across Europe would be a benefit.

    One can fully agree and support the idea of harmonising IP matters across Europe, and nevertheless not agree at all with the UPC as such, and its numerous shortcomings, and certainly not with the way it is forced upon all of us. This has nothing to do with not being well prepared. The contrary is true! It is because of a careful preparation that reservations pop up. I doubt HSP has ever thought of that.

    May be “those who are late will be punished by life” (which is a typical German expression – die letzten straft das Leben), but in a well known book I found the statement “those who want to be first will be the last”. What is better?

  17. @HSP

    Many of the comments here that are “critical” of the UPC demonstrate a sophisticated level of understanding of the provisions of the UPCA and the UPR, and their interactions with the EPC and EU laws.

    In what universe does such a sophisticated understanding of the law make the individuals behind those comments “not fit” for handling the UPC?

    Please try to stick to reality (and the legal arguments advanced by the “critics”) when commenting. It really does the “pro-UPC” lobby no good to have support only from commentators who launch ad hominen attacks, and who completely fail to engage with the legal arguments.

  18. @HSP: I do not think that a lot of resistance comes from this side. The firms who can and do handle large infringement cases now will also be able to handle them at the UPC. A prosecution patent attorney or random attorney-at-law who in theory can represent before the UPC will in my opnion not start with infringement cases just because he is allowed to do so at the UPC. And if it is simply for the reason that he will not find a client willing to take that risk. I just thought about this for the first time, but the intended regulations with respect to representation at the UPC (a lot of EPAs will be grandfathered in) which in a way give a lot of EPAs a “promotion” (new professional title as well?) could explain a lot of the support coming from patent attorneys.

  19. To peter Parker,

    You make a mistake if you think that similar to the opening of the EPO or to accession of new member states of the EPO, EPAs will be grandfathered in! The contrary is true.

    Art 48(1) UPCA makes it clear that “Parties shall be represented by lawyers authorised to practise before a court of a Contracting Member State”. So, in principle, lawyers are having the monopoly of representation before the UPC.

    According to Art 48(2)UPCA “Parties may alternatively be represented by European Patent Attorneys who are entitled to act as professional representatives before the European Patent Office pursuant to Article 134 of the EPC and who have appropriate qualifications such as a European Patent Litigation Certificate.

    So in order to represent a party before the UPC, any EPA will have to have a further certificate of the type CEIPI Litigators, Hagen 2 and Queen Mary. No grandfathering whatsoever in order to represent before the UPC.

    Art 48(4) merely provides that “Representatives of the parties may be assisted by patent attorneys, who shall be allowed to speak at hearings of the Court in accordance with the Rules of Procedure”.

    When looking at R 291(1)UPC the right to speak is not limited to EPAs cf. R 287(7)UPC but in principle open to any patent attorney, i.e. national patent attorneys, allowed to practice in a contracting state, cf. R 287(6,b)UPC.

    R 291(2)UPC makes it however clear that “Such patent attorneys shall be allowed to speak at hearings of the Court at the discretion of the Court and subject to the representative’s responsibility to coordinate the presentation of a party’s case”. in other words, and to use EPO jargon, non qualified representatives will at best be “accompanying persons” in the meaning of decision G 4/95 of the EBA. In other words, without proper certificate, do not count on it to be allowed to speak, in spite of what is said in the UPCA.

  20. Dear Stop taking us for a ride, please have a look at the latest revision of the proposed “Rules on the European Patent Litigation Certificate”, in particular Rule 12 thereof.

  21. This in reaction to Stop…Ride:

    The big Anglo-Saxon law firms have been boiling with frustration, these past 30 years or so, because patent attorney firms at the EPO have stolen “their” business. Now they are clawing it back.

    How? By lobbying Brussels with their “40 years of failure” mantra. What a travesty! Look at the EPO White Book of the established caselaw of the EPO’s DG3. For me, (and I started in the profession long before 1978), this is not failure but “40 years of Brilliant Success”.

    Meanwhile, Berlin (and Karlsruhe) has just woken up to the cunning French plan to strip Germany of its leading role in patent litigation and ship it all, instead, to Paris. How else to understand the Constitutional challenge to the UPC in Germany?

    Europe is a treasure. A beacon to a world that has forgotten (or never known) that jewel of human civilisation, The Rule of Law. But for self-destructive capability it is world-champion.

    1. Dear Max Drei,

      I can only but approve what you said. I take bets that, would it have been possible, pure bread litigation lawyers would have liked to have a monopoly in representation before the UPC.

      The disdain for technical judges brought to light by some members of the club, was clearly to be witnessed at the 2016 UPC conference at the EPO. I remember quite a heated debate between a technical judge from the Swiss court, Mr Bremi and Mr Hoyng.

  22. To Peter Parker,

    I had a look at R12 of the Rules on the patent litigation certificate.
    In R 12(a) there are much more institutions than I have mentioned. But an EPA needs a certificate. This has nothing to do with grang-fathering.
    I cannot see in R 12(b) a grand-father rule as it was the case at the EPO.
    I know very few EPAs who are at the same time lawyers, as for those what counts first is the status of lawyer. May be for German EPAs who can also represent before the BPatG it might apply, but this is not sure to me. The number of EPAs having sat as judges in at least three infringement cases, should also not be so high. And this might be the case in only a few member states.

    I might be wrong, and I happily acknowledge it. But then you have to explain better on what legal rule you base your statement. I am looking forward to see your explanations.

    1. @Stop taking us for a ride

      Rule 12(a) which relates to the qualifications during the transitional period, e.g. lists (ii) FernUniversität in Hagen, course “Law for Patent Attorneys” (Hagen I) and its predecessor, the course “Kandidatenkurs Fischbachau”. These courses are part of the German national qualification. If you are an EPA and a German Patent Attorney, you will be admitted as a “grandfather”.

      In contrast, Hagen II which is the additional litigation course leads to a Master degree and thus falls within the scope of Rule 11.

        1. The Rules on the patent litigation certificate provide for grandfathering in the UK as well (on the basis of the Intellectual Property Regulation Board, “Intellectual Property Litigation Certificate”).

          Brexit and the German challenge will probably combine to make this a moot point though.

  23. Well, it is 6 days on and not one single commentator has even attempted to address my questions relating to the (problematic) post-Brexit participation of the UK.

    I have to say that I am disappointed, but not entirely surprised. Every time I have spotted a potential (serious) problem with the UPC as currently envisaged, and raised the issue with “supporters” of the UPC, I have never received a response that has persuaded me that the problem does not exist. Indeed, to the contrary, there has been recognition of the problems… just no attempt to engage with what those problems might mean for non-compliance of the UPC with EU and constitutional laws.

    Believe me, with so much effort expended so far, and with the finishing line having seemed tantalisingly close, I “get” why supporters of the UPC might be reluctant to acknowledge the existence of potentially serious problems with the whole project. I just find it extremely depressing that much more effort appears to be expended upon denigrating the “critics” of the UPC than upon actually thinking about the legal points that they have raised.

    With this in mind, I make a plea for engagement with the following questions.

    Firstly, is Mr Pors correct in his assertion that the UK divisions of the UPC “are not UK courts, but divisions of an international court”?

    If so, how can a UK division of the UPC simultaneously be “an international court” (for the purposes of the UK participating in the UPC post-Brexit) and “a court or tribunal of a Member State” (for the purposes of enabling the UK divisions of the UPC to make preliminary references to the CJEU under Article 267 TFEU)?

    This is just the simplest of the many questions that I have about the UPC, but at least getting a straight answer to this would be a start…

    1. Dear Concerned Observer, just my 2 cents on your queries. First and foremost, I share your view that you have touched a pretty serious problem here, albeit one that many supporters of the UPC prefer to conveniently ignore for the time being. I posted a picture on this blog about 1 year ago when Theresa May held her Lancaster House speech. The picture basically said “Passengers only behind this point. – This is it, folks. Time for last goodbyes”.

      That is, if the UK takes its proposed “hard Brexit” seriously and if CJEU jurisdiction is a red line that the UK does not want to cross, then I find it difficult or even impossible to see how the UK could stay in the UPCA. Now, there are signs that the UK’s position on CJEU jurisdiction might soften a bit and that “indirect” CJEU jurisdiction (such as in a review instance of an ‘international court’ such as (arguably) the UPC) might be accepted, but then who knows? The only clear signal that I am able to receive from the UK government at this moment is one of utter confusion and in-fighting.

      Looking at the same problem from the EU’s perspective, I would also anticipate problems. Isn’t the UK’s joining the UPCA and establishing London as one of the seats of the Central Division exactly what the EU has designated (and so far constantly refused) as “cherry picking”? We shall see.

      One German biotech journal (transcript) has reported that the German government is no longer “hot” on ratifying the UPCA before Brexit. Maybe just rumors, the alleged source was an anonymous person said to be knowledgeable about the thinking within the Ministry of Justice. But it sounds plausible, does it not? Legal systems are being set up to create certainty for stakeholders, and it makes very little sense to me that Germany should want to start a complex system such as the UPCA some time next year (even if she could) only for it to end in the Brexit chaos in March 2019.

      Thus, I think it is time for everybody to get realistic. The EU should work towards reshaping the UPCA both with and without the UK, depending on the political situation and the outcome of the constitutional complaint. But a plan B should now be developed and seriously pursued, unless the EU wants to bury the entire UPC project. Whichever of the two plans will eventually be realized, the UPCA will need to be amended anyway.

      Right now, its Art. 1 reads “The Unified Patent Court shall be a court common to the Contracting Member States and thus subject to the same obligations under Union law as any national court of the Contracting Member States.” What this means at least to me is that the UPC is meant to be an EU court, albeit no national court but a supranational court, but with the same legal obligations as a national court. Whether the CJEU will accept this construct is an interesting question that Mr Stjerna raised at length in his constitutional complaint. He argued that the CJEU has precisely rejected such a construction in C1/09, insisting that the court system within the EU consists of the national courts (which may not be sidelined or replaced) and the CJEU. We shall see how flexible the CJEU will be this time.

      Conversely, the UPCA is certainly no “international court”, as Mr. Pors wanted to have it. If it were, the UPCA would violate the EU Treaty, at least in my humble opinion, and the CJEU would most likely trash it one more time.

      By the way, and contrary to the views of some other commenters here, I have little doubts that the FCC will accept the case for a decision and in a first step refer the question of compatibility of the UPCA with European law to the CJEU. True, the CJEU did already decide something on the European Patent Package in the nullity action filed by Spain, but it restricted its judgment to the two Regulations and explicitly refrained from giving an opinion on the UPCA. So there is no clarity at all about the CJEU’s view about the UPCA at the moment, which I think is not a satisfactory state of affairs. Maybe we should really hear the CJEU’s and the Federal Constitutional Court’s views on this system before it starts.

      One more thing. The constitutional complaint also criticized the fact that the legal protection afforded by the UPCA is incomplete, since the jurisdiction of the UPC over decisions by the EPO is very limited. Now, you may say, we have been living in such a world for decades, so what is the problem? But Mr. Stjerna drew the FCC’s attention to the fact that the CJEU’s advocats generales criticized exactly this point in their opinion in C1/09. Unfortunately, though, the Court did not discuss this issue in its opinion. It did not have to, as it already found the agreement to be contrary to EU law for another reason. However, this “non-opinion” does not necessarily mean that the CJEU had internally discarded this criticism. We simply don’t know.

      Interesting times…

      And by the way, dear Wouter, one can very well be critical about the UPCA for good and justified reasons, and yet profit from it if and when it comes. But my impression increasingly is the reverse: the only hot proponents of the UPCA seem to be those who will certainly profit from it: big multinational law firms and – perhaps – a few larger companies, mostly from outside the EU. I have yet to hear or see an outcry by European industry, let alone SMUs, complaining about how long it takes until Santa Claus finally brings us the long-awaited UPCA for Christmas.

      Which does not mean that a Unified Patent Court is a bad idea, don’t get me wrong, but perhaps my personal support for a UPCA comes more from a theoretical perspective: What I like best about the idea of an UPCA is that it may help to advance the integration of the EU. It cannot be overemphasized, I think, that the UPCs Rules of Procedure are the first common EU civil procedural law, which I think would be a major achievement – if it ever came to be implemented. But we have to get it right.

      1. Thorsten, I agree that we have to “get it right” with any system that we introduce for unitary patents (and a unified patent court). The trouble that I have is that the current arrangements for the proposed UP / UPC get it wrong on so many levels.

        I have lost count of the number of “serious” problems that I have spotted with the proposed system. However, here is another for you to ponder.

        The UPC will almost certainly use the provisions of Article 26 UPCA to decide whether there has been indirect infringement of a “unitary” patent (or of a not opted-out “traditional” EP).

        Art 26 introduces a concept that is completely new to patent law in Europe, namely an expanded territorial scope in which the “infringing” acts may be committed. That is, whilst indirect infringement under national laws previously referred only to acts committed in ONE country, Art 26 refers to acts committed in any of 14 or more countries (“the territory of the Contracting Member States”).

        This all seems fine and well until one realises that Art 26 is supposed to apply RETROACTIVELY to patents granted on applications that were filed before the UPCA was even drafted. Thus, if the UPCA ever comes into force, it could be used to stop 3rd parties from committing / repeating acts (of alleged indirect infringement, where the offer and supply take place in different countries) that would have not been “infringing” acts at the date that the patent application was first published.

        In other words, the UPCA (together with the UPR) attempts to apply new laws to old situations. As I understand it, the CJEU has developed general principles that are aimed at stopping this kind of situation from happening. (If you are in any doubt as to why such principles have been developed, then it might help to illustrate the point if you try to figure out which scope of PROVISIONAL protection would be applied in the scenario described above. That is, if the claims of the published application were unchanged in the granted patent, would there be indirect infringement of the application even if that were impossible under the (national) laws in force at the time of publication?)

        Thus, retroactive application of new laws of infringement is another way in which the Unitary Patent Package as currently conceived does not comply with EU law.

      2. I have realised that one of Mr Pors’ earlier publications addressed the question that I have posed. That is, in his June 2015 article in BIE (http://bit.ly/2AHlzge), he stated that the UPC “will of course refer questions to the CJEU where appropriate”. In doing so, he pointed to Article 21 UPCA and Article 267 TFEU as the sole legal basis for such references.

        Article 267 TFEU only enables references to the CJEU to be made by “a court or tribunal of a Member State”. Thus, by referencing that Article, Mr Pors makes clear his view (in 2015) that the UPC will be a court or tribunal OF A MEMBER STATE. For reasons that are all too obvious, it now appears that he has changed his mind.

        Whilst I do not know the answer to my question, there is one thing of which I am certain. That is, I shall only take seriously the views of others that are based upon genuine conviction (and sound, legal reasoning) as opposed to mere convenience.

  24. I have to admit. I am lazy and I haven’t done all of the homework myself. A lot of people, however, have done their homework and publish opinions on the topic. It would be nice to know whose opinion I can trust. Many of them say that there might be some problems, but they can be fixed after the start. Just like EPC back in the days. But why not fix in advance? I find it very hard to believe the position of Mr. Pors as the opposing party seems also be sensible people with reasoned arguments. If it was so straight-forward there would be a lot less opposition. But what would I know as I am one of the lazy attorneys.

    As I am 99,9% prosecution attorney this will not change my life much. However, our clients file applications because they want to use their patents. When SME clients ask questions about UP(C), they are typically quite easy to answer. Will it be cheaper? Probably not. Do we really need to take patents published in French into account when we stay in Elbonia only? Yes. Can we speak in our own language? No. Why did we ratify? I don’t know. Who will get the benefit? Err, good question.

  25. As far as post Brexit, UK participation is concerned, I remember that after Opinion 1/09, Prof. Tillman made it abundantly clear that, since EPLA has not been found in accordance with EU law, all future agreements of this kind, for instance the UPC, would or should be reserved to EU member states.

    What a surprise, after Brexit he published a new article claiming that UK could stay in the UPC, and even other non-member states could join, e.g. Switzerland.

    When one sees how a member of the club having drafted the rules of procedure of the UPC goes with the wind, do not expect a clear reply from any of those people.

    My conclusion is that even if you would get a reply, you could not rely on it.

  26. Those interested in propaganda and having a good command of the German language should have a look at this new piece:

    http://www.mittelstandinbayern.de/europaeisches-einheitspatent-gut-fuer-den-mittelstand/

    Written in “Mitelstand in Bayern – Das Online-Unternehmermagazin” (“SMEs in [the German state of] Bavaria – The Online Entrepreneur Magazine”) it is apparently directed at SMEs and filled to the rim with misinfo/disinfo on the Unitary Patent and the UPC. Having a closer look at its author reveals him to be the head of a PR company which is running the site. The services offered by said PR company include “we act as your external press office and support your public relations with specific services, also in case of crisis”. No further comment necessary.

  27. The UK seems to go forward with ratification, as they said they would. If this continues, the UK will ratify this year. If that is the case I cannot see how the German government can put off ratification much past the spring. Perhaps the reports are wrong, but the report is that the FCC requested, not ordered, the delay in ratification. Such a request is easy to accommodate while the UK has not ratified. It seems to become politically much more difficult, and perhaps impossible (?) once the UK signs. Particularly, as Brexit pundits are now tying IP rights to freedom to trade throughout the EU. Does anyone know if the President will postpone after (and if ) the UK ratifies? The FCC is a serious court and I think unlikely to worry about politics, and it may take time to give its decision, which I expect to be dismissal of the complaint. But the German government will not ignore its political obligations to other UPCA states and may not delay months more over a complaint filed almost a year ago. Will the FCC issue an order to prevent ratification if other UPCA states begin to complain of the delay? I am sure many seem happy to benefit from delay of the German government, but why can they expect it?

  28. Commentator strikes again.

    On the other hand it is not by repeating fallacious arguments that they gain value! Another way to look at this post is to see the dangerous effect of self suggestion.

    UK has announced that it will ratify the UPC. Not much has been done in this respect. Even if UK ratifies before Brexit, the chances that it will be able to stay after Brexit, are quite remote, unless it accept the jurisdiction of theCJEU, which would mean political suicide. You cannot have a Brexit, and in the same breath say, say that for the small domain of patents we will accept being inside the EU, and accept the jurisdiction of the CJEU.

    Saying that the German government has political obligations with respect to the other states having ratified is either a clear expression of wishful thinking or absolute naivety. It is to be doubted that either the German head of state or the GFCC, will be impressed by such plea and quickly drop everything and and allow ratification in a short time.

    Stop uttering such complete non-sense!!

  29. A number of people still seem not to grasp the rationale underlying the German Federal Constitutional Court’s request to the the Federal President to suspend the ratification proceedings. The court has developed this repeatedly used practice out of respect for the principle of the separation of powers, as to avoid having to grant a preliminary order against an institution of a different state power. Thus, when the President receives a respective ‘request’, he very well knows that, should he not agree to do as asked, the Court will issue an order to that extent. Having to follow said ‘request’ he will have to, be it one way or the other.

  30. Mr. Pors stated: “There also is no reason to relocate the London local division or the London seat of the central division. These are not UK courts, but divisions of an international court.”

    Can someone educate me on why the UPC should be considered as an international court? I have read this argument multiple times but never with a detailed reasoning.

    To me, it appears that the UPC is based on an agreement on enhanced cooperation in patent matters within the EU legislative frame work. Article 1 of decision 2011/167/EU for the EU member states: “…hereby authorised to establish enhanced cooperation between themselves in the area of the creation of unitary patent protection, by applying the relevant provisions of the Treaties.”

    The authorization was implemented in Regulations (EU) 1257/2012 and 1260/2012 for the European patent with unitary effect and in the European Council Agreement 2013/C 175/01 for the UPC. None of these texts refer to non-EU member states or the possibility of their accession.

    Thus, it seems that the EU member states where neither empowered nor had the intention of creating an international court system open to non-EU member states.

    So what is the thinking here?

    As a side-remark: It is a different matter whether it is politically desirable to have the UK within the UPC system. I believe it is. Here, I am just interested in the legal aspect.

    1. I believe that the question arises because, in contrast to the Benelux court, the UPC is arguably NOT situated within the judicial system of European Union Member States.

      That is, the (minimal) nature of the UPC’s connections with the national courts of the EU Member States make it look a lot more like a “foreign” court than a court that is truly “plugged in” (e.g. via appeal / remittal routes) to national legal systems.

      In other words, it is unclear whether mere statements in the UPCA (such as “The Unified Patent Court shall be a court common to the Contracting Member States and thus subject to the same obligations under Union law as any national court of the Contracting Member States”) are sufficient to truly “embed” the UPC as part of the national legal systems of the Participating (EU) Member States.

      It is also doubtful whether the UPC qualifies as a “stand-alone” part of the EU legal order. This is because there is no EU legislation creating that court. For example, decision 2011/167/EU only refers to unitary protection, and not to a unified court.

      However, if the UPC truly is an “international court”, then this would kill the UPCA stone dead. This is because the set-up of the UPC would be such that it would provide rulings on matters of EU law (such as SPCs, etc.) but would be unable to refer questions to the CJEU. The case law of the CJEU makes it abundantly clear that such an arrangement is incompatible with EU law.

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