Early on Monday 10 December 2018, the Court of Justice of the European Union issued its judgment in Wightman et al v Secretary of State for Exiting the European Union (C-621/18), on whether the UK can unilaterally withdraw its Brexit notification. Although of course the judgment is strictly a legal reasoning, it also comes as close to a political statement as the CJEU will probably ever get. The answer was: yes, the UK can do that unilaterally.

Later on the day this was followed by political events in the UK House of Commons, where Prime Minister Theresa May admitted that a vote on the draft UK Withdrawal Agreement of 14 November 2018 would inevitably face defeat, and therefore decided to postpone the vote. She announced that she would go back to the EU Commission and Council to renegotiate. There were immediate statements on Twitter, as is now the fashion. Donald Tusk said “we will not renegotiate the deal”. Dutch Minister of Foreign Affairs Stef Blok, when asked for a comment on the Dutch 8 o’clock news, said: “you can’t refuse to give her a cup of coffee”. In fact, May will travel to The Hague today, so she will be able to have that cup of coffee.

However, leaving politics aside, the judgment also contains a paragraph that may shed new light on the options for the UK to continue participation in the Unified Patent Court if it chooses Brexit (in whatever form) after all. The CJEU first of all held that there was a sufficient interest to answer the question whether the withdrawal of the notification could be unilateral, despite the fact that the UK argued that this was only a hypothetical question. The CJEU held that it was for the referring Court to determine whether the order for reference was made in accordance with rules of national law governing the organization of the courts and legal proceedings. If the referring Court found this to be the case, it is not for the CJEU to refuse to answer the question. Besides, since the question at hand concerns the interpretation of a provision of EU law, which is the point at issue in dispute, there is no doubt as to its relevance, according to the CJEU.

This is an important ruling, as it would probably also apply to the UPC, if that Court would refer a question to the CJEU in accordance with the UPC Agreement, which both forms its constitutional basis and its basic procedural law. At the recent EPLAW Congress on 30 November 2018, Pierre Véron pointed out that the CJEU has held in its opinion 1/00  of 18 April 2002 with regard to the European Common Aviation Area (paragraphs 32 and 33), also referring to its opinion 1/91 of 14 December 1991 on the European Economic Area (paragraphs 59 and 51-65) and 1/92 of 10 April 1992 on the EFTA Court (paragraphs 33-35), that a Court which is not a national Court of an EU Member State can refer questions to the CJEU if this has been agreed and the Court is bound by the CJEU ruling. It seems that in today’s judgment the CJEU has added that it cannot refuse to answer such questions if they have been put in accordance with the laws that govern the referring Court. Under the combined effect of these CJEU rulings, that should also apply to questions referred by the UPC. This may not be a big surprise, but it is reassuring.

But there’s more. On the substance the CJEU of course rules that EU law is autonomous and has given rise to a structured network of principles, rules and mutually interdependent legal relations, binding the EU and the Member States. The question at hand – and, I would say similar constitutional questions as well – should therefore be examined in the light of the EU Treaties taken as a whole. But not only those. The CJEU comes to the conclusion that, based on an autonomous interpretation of EU law, the UK can indeed unilaterally withdraw its Brexit notification. But it also takes into account that this is corroborated by the Vienna Convention on the Law of Treaties, which – as the CJEU specifically remarks – was taken into account in the preparatory work for the Treaty establishing a Constitution for Europe. This indicates that the Vienna Convention, in as far as it contains relevant provisions, can be taken into account when deciding EU law issues.

Currently there seem to be three options for the UK. It may ratify the Withdrawal Agreement, which today seems unlikely, it may go for a hard Brexit, or – backed up by today’s CJEU judgment – it may withdraw the Brexit notification and stay within the EU. If the UK stays within the EU, the UPC can start as soon as the German constitutional case is resolved, since the UK has already ratified the UPC Agreement and with the German ratification the required number will be met. On the other hand, if the UK leaves the EU, that doesn’t automatically mean that it also has to leave the UPC Agreement. That Agreement itself doesn’t contain any provisions on termination or expulsion.

Prof. Winfried Tilmann in previous publications has expressed the view that this issue needs to be assessed under the Vienna Convention. This is confirmed in his massive commentary on the UPC, “Unified Patent Protection in Europe” (at page 63). According to that view, the loss of EU membership is not a fundamental change of circumstances within the meaning of article 62 Vienna Convention which would open up the termination under article 65 and 67 of the Vienna Convention. The continued EU Membership of the UK was not an essential basis of the consent of the other participating countries to be bound by the UPC Agreement. In fact it seems quite clear that they all would prefer the UK to remain part of the system, because that makes the system stronger, both because of the size of the population and economy that will be covered and because of the quality of the UK judges. The UK leaving the EU also doesn’t radically change the extent of the obligations which the UK has to perform under the UPC Agreement, since the UK will still accept the UPC’s jurisdiction, which is based on the UPC Agreement itself.

Until today however it was unclear whether the CJEU, when faced with such questions, for instance if asked for an advice in addition to opinion 1/09 of 8 March 2011, or if a question would be referred to it by either a national Court or the UPC itself, would take the Vienna Convention into account. That question has now been answered: the Vienna Convention was taken into account in the preparation of the EU Constitution for Europe and is therefore relevant for the interpretation of the EU Treaties and thus also for the question whether the UPC Agreement and the UK’s participation in that Agreement after Brexit is in conformity with EU law. The basis for that has become more solid today.

Obviously, the UK shouldn’t leave the EU, which apart from its economic benefits has guaranteed peace in Europe for many decades, a peace for which the grandparents of the current UK politicians have made huge sacrifices that deserve to be respected. However, if it does leave the EU, it can still remain part of the UPC, which at least in my view is an honourable cause.


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  1. Wouter,

    With all due respect, I think that the above analysis misses one or two key points.

    Firstly, it is important to note that Opinion 1/00 included the following conclusion:
    “Therefore, the mechanisms for ensuring uniform interpretation of the rules of the ECAA Agreement and for resolving disputes WILL NOT HAVE THE EFFECT OF BINDING THE COMMUNITY and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of Community law incorporated in the agreement”.

    In other words, rulings on provisions of EU law in connection with the ECAA Agreement (in common with rulings of the EFTA Court) would NOT be binding on any EU Member States, and so would not threaten the autonomy of EU law. By way of contrast, the UPC Agreement purports to make rulings of the UPC binding upon the Participating Member States. This is a highly significant difference, meaning that it is IMPOSSIBLE to draw any positive conclusions from Opinion 1/00 (or either of Opinions 1/91 and 1/92) when it comes to the question of compliance of the UPC Agreement with EU law.

    Secondly, I do not believe that paragraph 26 of the CJEU’s ruling in Wightman and others has any significance for the UPC. The key part of that paragraph reads as follows:
    “it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court”.

    In essence, the CJEU is saying that it is up to the national court to determine the need for a preliminary reference under Article 267 TFEU. However, the CJEU’s answer is based upon the undisputed assumption that the national court in question was a “court or tribunal of a Member State” in accordance with Article 267 TFEU. Given that the UK’s future participation in the UPC appears to hinge upon that court being classified an INTERNATIONAL court (ie NOT a “court or tribunal of a Member State”), there is at least a prima facie reason to doubt that the CJEU would accept any preliminary references from the UPC.

    In other words, the ruling of the CJEU in Wightman and others simply does not address the key point of contention for the UPC.

    One final point: the combination of the above two points could well provide reason to doubt Prof. Tilmann’s assertion that the UK’s loss of EU membership is not a fundamental change of circumstances within the meaning of Article 62 VCLT. This is because a potential consequence of that change is the conversion of the UPC to the status of an international court, the rulings of which could then threaten the supremacy and autonomy of EU law. Thus, whilst it is clear that the CJEU is prepared to entertain arguments based upon the VCLT, I do not believe that this would be the end of the matter for the UPC.

  2. Can I just say that linking the UK’s membership of the UPC to the deaths of millions during the first and second World Wars, even indirectly or implicitly, is fairly tasteless.

    “the UK shouldn’t leave the EU, which apart from its economic benefits has guaranteed peace in Europe for many decades, a peace for which the grandparents of the current UK politicians have made huge sacrifices that deserve to be respected. However, if it does leave the EU, it can still remain part of the UPC, which at least in my view is an honourable cause.”

  3. ” However, if it does leave the EU, it can still remain part of the UPC, which at least in my view is an honourable cause.”

    Not sure everybody shares your view.

  4. The comment that my remark about the sacrifices in achieving peace would be tasteless calls for a personal note from my side, which of course has no legal relevance and is purely made on my own personal behalf. I was born in 1959. My parents and grandparents were liberated in 1945 by English soldiers, who were fighting for a just cause and they have ever since been grateful for that. Since then, Europe has been able to prevent that antagonism between national interests could result in a crisis that could have resulted in a new war. In fact, due to that long-lasting peace, my generation and certainly the generation of my children doesn’t bear any grudge against any citizen of Europe, regardless of nationality. It is my strong belief that the EU has been crucial in this achievement, which certainly was built on the efforts of the allied forces. I am really deeply disappointed that this is completely disregarded in the Brexit discussion. In my view, that indeed is disrespectful towards those allied forces and certainly to those who gave their lives to achieve this peace. Of course, the EU as it currently exists is far from perfect and one can debate whether it is meeting all the desired economic and democratic goals, but it is the most important platform where European countries have been working on a peaceful coexistence and even cooperation.

  5. Mr Pors,

    You are going from bad to worse. In an earlier blog you considered those against the UPC just being afraid or not well prepared for it. That was bad enough, but now you come with aspects which have nothing to do with the price of butter.

    You simply dislike Brexit, not because of your family history, but because of your purse. You know very well that with Brexit the UPC is dead, and all your hopes in cashing in on your efforts will have been in vain. You should be ashamed to bring in bribes of your family history in support of your purse.

    Looking from a strict military point of view, it is the entry in the war of theUSA which was the determining factor, and this includes US soldiers. Later it was the Marshall plan which helped Europe in general and Germany in particular to get back on its feet.Going on along this line, you should thus wish that the US join the EU and the UPC. The more you write, the more you derserve the cause you want to support.

    By stating that if UK has to leave Europe it should remain in the UPC because of all those who lost their life during WW2 you are actually insulting those you mean to treat with respect!

    That in your pro domo plea or better your pro purse plea you bring all your friends in play is not a surprise, I mean : Tilmann, Veron and Co. I did not spot the king of rumours, Mooney. It is not because Mr Tilmann has written something in his book that it is correct. He has written a lot alo about Opinion C 1/09, and you can see how his point of view changed over time, when he realized that what he said originally meant that UK could not say in the UPC after Brexit. What Mr Veron said might be correct at a glance, but all those decisions have to be seen in the context in which they were taken. As a lawyer you should no this. And Concerned Observer has clarified the situation.

    This comment, reminds me of similar comments from other supporters of the UPC claiming that the German Constitutional Court had already decided on the EPO and the EPC was in agreement with the German Constitution and hence the UPC would be as well. The missing detail was that the GFCC dismissed the complaint for purely formal reason, and not for reasons of substance.

    All what the UPC supporter group manages to bring forward are truncated views so that all the real problems the UPC poses are swept under the carpet. The more time goes by, the more one sees what problems are linked with the UPC. If all had gone to plan, there would have been a faint accompli which would have been difficult to get read off.

    Thanks Brexit more time has been given to look at all the implications of the UPC and of its RoP which has been concocted by a small group of coopted people.

    Instead of trying desperately to defend the undefundable with very doubtful means you, and your friends, should have put your energy in improving matters, and not coming up like a Tibetan prayer mill that the UPC is the best thing which could happen to Europe, which is actually not the case.

    According to Art 10 of the Statute of the Court, which is part of the UPCA, it is provided that a UPC judge can be removed from Office by a decision of the Presidium of the UPC. It is good that at least the judge in question has to be heard, but I did not see anywhere in the Statute of the Court that any means of redress are offered to a dismissed judge.

    My question is thus: is the independence of UPC judges guaranteed? If you say yes, please give cogent reasons and not some waffling that this will never happen, but something had to be provided in case off. please also avoid referring to Art 87, par. 3. It has not been conceived for this. To be honest, I cannot understand that something like this has been signed and better ratified.

    Techrights: FINGERS OFF!!! Directly or indirectly!!

  6. Dear,

    Your comment makes me thinking you’re part of TechRights team. Well done! You have just proven – you can do the job and you definitely deserve the pay given. On the technical side though – i your post I haven’t seen any single valid argument supporting your jigsaw puzzle of vague allegations. Next time, try to read more on the topic before pressing that “post comment” button even though it’s so naturally tempting. Good luck!

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