The compatibility of the Unified Patent Court Agreement (UPCA) and two pieces of draft legislation submitted for its ratification in Germany with the German Constitution was examined only very selectively, whereas the compatibility with EU law was apparently not examined at all. This is the conclusion of the Düsseldorf based patent lawyer Ingve Björn Stjerna, who meticulously investigated the procedure leading to the German ratification of the UPCA.
Stjerna, the lawyer behind the constitutional complaint against the UPCA which led to a stay of ratification proceedings in Germany, published an article on the issue last month. The timing is not coincidential: a decision of the German Federal Constitutional Court (BVerfG) about the case (2 BvR 739/17) is expected in the upcoming months. At the end of his article, Stjerna implicitly says the BVerfG should take into account his findings:
‘The documents provided suggest that the BMJV [the Federal Ministry of Justice and Consumer Protection] having the overall responsibility for the implementation of the European patent reform in Germany and the ratification of the UPCA, did not comprehensively examine the Agreement for its compatibility with the Grundgesetz nor or [of?] that with Union law, in particular with CJEU Opinion 1/09. The BVerfG may take note of this with interest.’
In Stjerna’s constitutional complaint, filed late March 2017, he had already set out why he himself is convinced the UPCA is unconstitutional. As patent attorney Thorsten Bausch reported earlier on this blog, Stjerna’s claim is based on four grounds:
‘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 first of the four points refers to the fact that according to Stjerna, a majority of two thirds of the members of the Bundestag would have been necessary for passing the ratification law, whereas in reality there were by far not enough members present to satisfy this quorum (see also this article).
However, in his most recent publication, Stjerna argues there were deficiencies in the procedure preceding the parliamentary ratification as well. He starts out by explaining the legal requirements for German ratification of the UPCA, the role of the various ministries and their divisions and officials. Paragraph 5, ‘Legal scrutiny of the UPCA and its ratification: Questions to be assessed’, contains the following list of issues which, according to Stjerna, have to be considered to comply with the law:
- Are the UPCA and the ratification laws compatible with the Grundgesetz, in particular with fundamental rights?
- Are the UPCA and the ratification laws compatible with the State’s duty to protect constitutional identity?
- Were the connections to and compatibility with the law of the European Union set out in the explanatory memorandum of the ratification laws (…)?
- Were the costs for the economy, especially for medium-sized enterprises, described (…)?
‘The fact that (…) the BMI [Federal Ministry of the Interior] and the BMJV were to be involved already in the preparatory work for the UPCA to resolve issues of constitutional law would suggest that all these issues had already been examined once before the UPCA was signed’, Stjerna adds.
In the second chapter of his article, using among others information he gathered with three requests (in October 2017, August 2018 and February 2019) based on the Freedom of Information Act, he writes what happened in practice. ‘The answer is sobering. According to the official information provided by the BMJV, individual aspects were examined for compatibility with the Grundgesetz, but relevant constitutional issues remained unexamined, as did compatibility with Union law’. Then he proceeds with all the details sustaining his conclusion. A few exemples are given below.
II.1.a) Document 907/2012: “Constitutional Examination of the Draft [EPG] Agreement”
‘Document 907/2012 concerns an e-mail from Mr Karcher dated 29/10/2012 to the Head of BMJV Division IV A 2 (competence: constitutional law of State organisation and financial constitutional law), Horst Heitland, requesting the latter “to carry out for the draft Agreement (on a United Patent Court [“UPC”]) the constitutional examination required for an international Agreement”. The basis was the draft UPCA according to Council document 14750/12 of 12/10/2012.
Surprisingly, however, the BMJV was unable to provide a document containing the results of the “constitutional review” by Division IV A 2.
Initially, they declared that the statement of Division IV A 2 was “not part of the file”. (…) Finally, the BMJV declared that there was no written statement at all (…) So did the German Federal Government sign the UPCA on 19/02/2013 without a positive result of legal scrutiny? The inconsistent, linguistically stilted statements of the BMJV and the internal warning “highly doubtful” with regard to the document in question should speak for themselves. It is possible that the contents and results of the “constitutional review” shall be withheld from the public and, above all, the BVerfG. If this was the case, it will not be possible to assume that the compatibility of the UPCA with the Grundgesetz was deemed unproblematic.’
II.2.bb) Constitutional doubts concerning the amendment of the UPC Statute by the Administrative Committee without the involvement of the legislator
‘Tobias Plate, who at the time was active in BMI Division V I 4, expressed constitutional concerns primarily with regard to the possibility of amending the UPC Statute by decision of the UPC Administrative Committee with a three-quarters majority and without the participation of the German legislator, as provided for in Art. 21a (2) of the draft UPCA (= Art. 40 (2) UPCA).
(….) In an e-mail dated 15/11/2012, Mr Karcher stated that amendments to the UPC Statute were directly valid as a consequence of the sovereign rights conferred on the UPC and “therefore required no further domestic implementation”. He drew an astonishing comparison with the Rules of Procedure of the UPC (translation from German):
“The Rules of Procedure of the Court, for which, pursuant to Article 22 of the Agreement, the Administrative Committee is competent as well, also constitute a transfer of sovereign rights under Article 24 (1) GG, with the effect that the Rules of Procedure directly trigger rights and obligations for citizens or companies in the Contracting States. Here, too, there is no provision for an additional domestic enactment.”
Whether such a direct creation of rights and duties for the citizen by a committee of the executive branch, bypassing the Parliament, is constitutionally permissible, might occasionally be clarified by the BVerfG. (…)’
II.4.c) Assessment of compatibility with Union law, in particular with CJEU Opinion 1/09?
‘The BMJV could not provide any information showing an examination of the UPCA for its compatibility with Union law, in particular with CJEU Opinion 1/09. Nothing is apparent for an early clarification of questions under European law pursuant to sec. 45 (1) 3 GGO [Joint Rules of Procedure of the Federal Ministries]. The draft legislation on UPCA ratification also lacks the presentation of the connections to and the compatibility with the law of the European Union, as required by sec. 43 (1) no. 8 GGO.’
II.4.d) Description of the costs for the economy, in particular for small and medium-sized enterprises?
‘Finally, it is noticeable that contrary to sec. 44 (1), (5) no. 1 GGO, the costs of the European patent reform for the economy, in particular for small and medium-sized enterprises, were not addressed in the draft ratification laws.’
These examples above constitute just a fraction of what Dr. Stjerna has researched and concluded. Those who are interested in the complete article and underlying documents are recommended to go to Stjerna’s website, where his article is also available in its original, German language.
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One can only be thankful to Mr Stjerna to have had the guts to say no to an agreement which in the end was set up by and for the benefit of a small number of big international lawyer firms presently engaged in multinational litigation. The UPC is a prime example how lobbying intervenes in the legal sector.
There are a lot of constitutional problems, not only in Germany, but in all the member states.
That the Administrative Committee of the UPC should be able to amend the UPC Statute in a way which squeezes out national parliaments has been demonstrated by statements of members of those firms claiming that in case of Brexit, provided UK has ratified before Brexit, it could stay as member of the UPC.
All the haste to bring the UPC into force as soon as possible is explained by the desire to establish a fait accompli after which it would no longer be possible to go back.
The UPC rules of procedure were concocted by a select committee whose members co-opted each other. There have brought in new ways of interacting on the legal level without the parliaments being even aware of it. I think for example of the forced intervention, which boils down to the fact that a judgement of the UPC can be applied to a third party who did not participate in the dispute. I doubt this is constitutional in lot of member states.
If the UPC is so compliant with EU law, why was it avoided at any costs to ask for an opinion of the CJEU like it was the case for EPLA?
The judges removed from office by the Presidium have no means of redress, cf. Art 10 of the statute. Which can as said be amended by the Administrative Committee, although it meant to be part of the Agreement. Renewal of judges is also not a token of independence. Will renewal be conditioned by a given performance, whatever one understands under this heading, like for the members of the Boards of Appeal of the EPO?
Have the members of Parliaments in all member states having ratified really looked at what they ratified? Strong doubts are permitted.
When one looks at the economic consequences of the UPC, they are abundantly clear.
When barely a third of European patent applications stem from members states of the EU, who will primarily benefit from them? Mostly non-European litigants.
Which industries need a patent in all member states of the UPC? The fingers of one hand are more than ample. One should simply look at the average validations of European patents. My guess is between 5 and 7 at most.
As far as European SMEs are concerned, the member of a big litigation lawyer firm has conceded in this blog that the UPC is not made for SMEs, in spite of all the pseudo studies issued by the EPO on this topic. We know by now, that those studies are not worth the paper they are printed on.
It is just a mere detail that the quorum for ratification has apparently not been reached when the UPC was ratified by the German parliament. There are plenty other reasons, much more important than this one, which should lead to the UPC not being ratified to come into force.
After Brexit, the removal of London as seat of a part of the central division in the Agreement itself should also not be left the Administrative Committee. It needs to reopen the negotiations and a new round of ratifications.
That some members of the legal profession wanted to set up a lucrative playground for their firms explains the vehement way they defend the UPC and want it at any rate and at any cost. It is good that Brexit and then the constitutional complaint disturbed this well organised lobbying action.
Techrights: FINGERS OFF!! Directly or indirectly, for instance by mere global referral to this blog.
@attentiveobserver
“That the Administrative Committee of the UPC should be able to amend the UPC Statute in a way which squeezes out national parliaments has been demonstrated by statements of members of those firms claiming that in case of Brexit, provided UK has ratified before Brexit, it could stay as member of the UPC”
It does not demonstrate that. Art 87(2) provides “The Administrative Committee may amend this Agreement to bring it into line with an international treaty relating to patents or Union law” and so the power as to the substance of such amendments is with those deciding international treaties (inc national parliaments) and Union Law (inc at least the European parliament) not the Administrative Council.
In regard to Brexit, the suggestion is that the UK remaining in the UPC could be agreed in the withdrawal agreement and/or agreements/treaties on the future relationship between the UK and EU that are in place before the end of transitional period. That would allow the Administrative Council to make any needed changes to the UPCA to implement such legally binding agreement between the UK and EU27. National governments would not be squeezed out- they would have their conventional role in ratifying (or not ratifying) such underlying legal agreement.
The Withdrawal Agreement is a matter of EU law, whereas the powers of the Administrative Committee of the UPC are a matter of International Treaty law. The Member States of the UPC Agreement and the EU are not identical. Therefore, the Parliaments of the EU Member States cannot replace the Parliaments of the UPCA Member States. Besides that, it appears as a legal absurdity to misuse a provision for amending an existing Treaty for bringing a not yet existing Treaty to life.
Dear Mr Barton,
My apologies for brushing over Art 87 UPCA. According to Art 87(2) UPCA, the Administrative Committee may indeed amend the UPCA to bring it into line with an international treaty relating to patents or Union law.
Art 87(3) provides the possibility for a member state not to agree with an amended UPCA, upon which a Review Conference of the Contracting Member States shall be convened. This means a diplomatic conference has to be summoned to amend the UPC. The question is thus who will decide whether or not it agrees with an amended UPCA. Primarily, it will be the Government of a member state who will decide.
If the government agrees with the amendment and accepts the new version of the UPCA, it will have an immediate effect in that member state. We could thus have the situation in which a revised international treaty enters into force for a member state without consultation of the parliament when the UPC is merely brought in line with an international treaty relating to patents. As a general rule, governments sign treaties and parliaments ratify them. Without ratification they cannot be part and be above national legislation.
If the amendment is to bring the UPCA in line with Union law, one can suppose that at least the European Parliament will have been consulted. It will thus remain to the government to incorporate the new union law in the national legislation, and thus most likely it will have to consult the parliament.
Nevertheless, Art 87 has been set up in order to make amendments easier, and I should thus not say that governments might be squeezed out, but rather the parliament may be squeezed out, depending on the decision of a government. On a constitutional level, this might pose a series of problems.
As for the present UK government and for any possible future government not wanting to accept decisions of the CJEU, any agreement keeping UK in the UPC after Brexit is mere wishful thinking. We have in any case to wait until after December 12th to see further in this respect.
As the German government has made clear that, independently of the decision of the German Federal Court, it might not ratify the UPCA before the end of the Brexit saga, any conjectures about the stay of a post Brexit UK are not useful.
Techrights: FINGERS OFF!!!
Honestly, I do not see the BVerfG decide the UPC complaint ‘in the coming months’. They will sit back and watch how the Brexit saga turns out. Only if and when this is ultimately resolved (whenever that is and in whatever way), will they proceed with the case. Everything else would be asking for new trouble under constitutional law.