The UK has notified the secretariat of the European Council it withdraws its ratification of the Unified Patent Court Agreement. This has just been announced by the UPC Preparatory Committee.
Apart from depositing the withdrawal notification, there has been a parliamentary written statement in the House of Commons by Amanda Solloway (Parliamentary Under Secretary of State, Minister for Science, Research and Innovation):
“UNIFIED PATENT COURT
I am tabling this statement for the benefit of Honourable and Right Honourable Members to bring to their attention the UK’s withdrawal from the Unified Patent Court system.
Today, by means of a Note Verbale, the United Kingdom of Great Britain and Northern Ireland has withdrawn its ratification of the Agreement on a Unified Patent Court and the Protocol on Privileges and Immunities of the Unified Patent Court (dated 23 April 2018) in respect of the United Kingdom of Great Britain and Northern Ireland and the Isle of Man, and its consent to be bound by the Protocol to the Agreement on a Unified Patent Court on provisional application (dated on 6 July 2017) (collectively “the Agreements”).
In view of the United Kingdom’s withdrawal from the European Union, the United Kingdom no longer wishes to be a party to the Unified Patent Court system. Participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government’s aims of becoming an independent self-governing nation.
The Agreements have not yet entered into force. However, in order to ensure clarity regarding the United Kingdom’s status in respect of the Agreements and to facilitate their orderly entry into force for other States without the participation of the United Kingdom, the United Kingdom has chosen to withdraw its ratification of the Agreements at this time. The United Kingdom considers that its withdrawals shall take effect immediately and that it will be for the remaining participating states to decide the future of the Unified Patent Court system”.
In a reaction the UPC Preparatory Committee writes: “Whilst this is disappointing news the Preparatory Committee will now convene to discuss the consequences of the UK withdrawal and agree a way forward. Once this has been settled, a further announcement will be made on this website.”
________________________
To make sure you do not miss out on regular updates from the Kluwer Patent Blog, please subscribe here.
UPC boosters will tell us Germany can go ahead with the ratification, and that the UPCA can enter into force anyway.
Dann bitte jetzt die Taube auf dem Dach, das EU-vertragskonforme Patentgericht, statt den Wolpertinger in der Hand, das abstruse nicht-EU Modell des UPC mit seinen merkwürdigen Deals.
Let’s get the real deal, an EU-Patentcourt as in the Treaties. Not the Wolpertinger in your hand, the UPC
So the UK has withdrawn its ratification of the UPC Agreement… or has it?
In this context, it is useful to consider the comments on withdrawal in the Treaty Handbook published by the UN. The Handbook has the following comments in connection with Article 25 VCLT:
“A State provisionally applies a treaty that has entered into force when it unilaterally undertakes, in accordance with its provisions, to give effect to the treaty obligations provisionally, even though its domestic procedural requirements for international ratification, approval, acceptance or accession have not yet been completed. The intention of the State would generally be to ratify, approve, accept or accede to the treaty once its domestic procedural requirements have been met. The State may unilaterally terminate such provisional application at any time unless the treaty provides otherwise (see article 25 of the Vienna Convention 1969). In contrast, a State that has consented to be bound by a treaty through ratification, approval, acceptance, accession or definitive signature is governed by the rules on withdrawal and denunciation specified in the treaty as discussed in section 4.5 (see articles 54 and 56 of the Vienna Convention 1969)”.
The last sentence is particularly interesting. This is because it implies that the withdrawal rules of Articles 54 and 56 VCLT apply as soon as a state has formally ratified an international treaty.
On the other hand, as noted by Mr Tilmann, Article 2(g) of the VCLT defines of “Party” (a term used in both of Articles 54 and 56 VCLT) in a manner that could perhaps be taken to imply that the withdrawal rules of Articles 54 and 56 VCLT only apply to a treaty that is in force for the “Party” in question.
In the light of the above, the absence of a formal withdrawal clause in the UPC Agreement means that it is not entirely clear which steps the UK must take in order to provide legal effect to its withdrawal from that Agreement. That is, it is not entirely clear whether notification to the other States under Article 25(2) VCLT will suffice, or whether it is instead necessary to proceed under Article 54 or Article 56 VCLT.
The UK has chosen to (attempt to) withdraw from the UPC Agreement by submitting a “Note verbale”. This implies that the UK has selected Article 56 VCLT as the legal basis for withdrawal. This is in part because that Note appears to have been addressed to the registry (and not the other Participating Member States, as would have been required under Article 25(2) VCLT). However, it is also because the consultation and consent required under Article 54 VCLT is conspicuous by its absence.
This leaves important questions unanswered. Firstly, under international law, is the “Note verbale” sufficient to effect the UK’s withdrawal from the UPC Agreement (and the PPI and PAP)? Secondly, if it is sufficient, what is the date upon which the UK’s withdrawal will be deemed to have occurred? That is, is the UK’s withdrawal effective immediately, or only after the period of 12 months specified in Article 56(2) VCLT?
From this perspective, it seems that the UK’s action today may have raised just as many questions as it answered.
At least UK’s position is now clear, but this does not mean the ratification of the UPC is free of any problems.
As Art 7(2) UPCA still exists it cannot be ignored, or it can be ignored at least by those wanting to ratify quickly. In any case it appears that Art 7(2) UPCA will have to be amended.
It now backfires what happened during the negotiation leading to the UPCA.
For the ratification it was enough to define the three countries having the most patents validated at a given date as necessary for the UPCA to enter into force, which meant Germany, France and the UK. Now UK’s position is taken over by Italy or even The Netherlands. Figures will tell.
For fear of being tricked out with the location of the various locations of the Central Division, the three contenders only saw fit to anchor the locations of the central division in Art 7(2) UPCA.
The UK is out of the UPCA, fair enough, but London is still in it. So what to do with London? Mr Tilmann proposed a declaration from the UK under Art 25(2) VCLT, which now is moot, as there is not yet a provisional application of the UPCA. This solution was anyway doubtful from the beginning.
The other solution proposed in the explanatory notes for the new ratification bill was a common declaration under Art 33(1) VCLT of the remaining countries. It appears politically naïve to expect from the remaining countries, and especially from Italy or The Netherlands, to sign a common declaration saying that the London section can provisionally be transferred to Paris or Munich.
There seems no clean way out than to amend Art 7(2) UPCA before the UPCA enters into force. This means a new round of ratifications and the corresponding delays.
Now the question of the annual fees which were based on the annual fees of the big four, i.e. UK, DE, FR and NL becomes acute. It is not possible to sell fees at a level which comprised the UK once the UK is out. By taking the NL fees into account, The Netherlands could say with reason, that the work of the London Section should go to a new section located in The Netherlands.
If Germany would nevertheless ratify with Art 7(2) UPCA as it stands, the risk is great that a constitutional complaint on this topic might be successful. One should also not forget the other constitutional problems as for instance the supremacy of EU law, which was brought in by the German Federal Constitutional Court itself.
The Chairman of the GFCC might have changed, and it is well known that the new one (a former lawyer) is in favour of the UPC, but Justice Huber is still there. Knowing what has been said about the ECB bonds buying scheme applies mutatis mutandis to the UPC.
We have not yet heard the end of the UPC saga, but I am curious to see what the new developments will look like. Going through the wall at any cost and irrespective of the damages which would result, or decide a stop so as to reflect about the new situation, which would imply for instance amending Art 7(2) UPCA.
On the other hand, it looks quite ridiculous to have a Central(?) Division sitting in the locations. So can of worms which has led to present Art 7(2) UPCA will have to be opened again.
That Germany is eager to ratify is understandable, as it could other wise mean the whole momentum for the UPCA is lost. But as it was clearly said in some of the comments send to the German Ministry of Justice, this is a big risk.
The slogan of the British SAS is: “Who dares wins”. In the present situation I have strong doubts, independently of the fact that Britain is now out.
The Protocol to the UPC Agreement on provisional application stipulates in its Article 1 (1):
“This Protocol shall enter into force the day after 13 Signatory States of the Agreement on a Unified Patent Court including Germany, France and the United Kingdom, have either ratified” … asf.
Thus, differently from the UPC Agreement itself, UK is expressis verbis among the obligatory States for the entry into force of the Protocol. Another clear provision which may be ignored?
The same issue applies to the Protocol on Privileges and Immunities, Article 18(1) of which states that:
“This Protocol shall enter into force 30 days after the date on which the last of the four State Parties – France, Germany, Luxemburg and the United Kingdom – has deposited its instrument of ratification, acceptance approval or accession”.
Thus, it would seem that the PAP and PPI ought to now be pushing up the daisies alongside the Norwegian Blue.
One could also take the view that the wording of Article 3(1) of the PAP and Article 18(1) of the PPI makes it clear that, with respect to the UPC Agreement, the possibility of withdrawal of a Participating Member State (or at least a PMS hosting an organ of the UPC) was NOT contemplated. If this view is correct, it could be virtually impossible to revive the current UPC Agreement in a manner that is consistent with the Vienna Convention.
No doubt the UPC’s proponents will right now be working on novel legal theories that purport to resolve this particular conundrum. The trouble as I see it is that, even if those theories do not hold water (or even pass the red face test), the only court having the power to prevent a Mautdebakel will be the BVerfG … whose focus will be the Basic Law. Thus, the challenge for adherents to the rule of law will be how to get the BVerfG to pay attention to invalidity of the UPC Agreement under international law…
Concerned, you point us to the BVerG (Germany’s Constitutional Court). The way I see it, this court is no pushover. Do you recall its recent finding, that the ECB measures to keep the Euro-Zone afloat are……wait for it…… un-Constitutional? If the Court has the cojones to tell the ECB where to get off, it surely can hold its nerve long enough to put the UPCA to sleep, and out of its miserable twilight existence.
Max,
I have no doubt that the BVerfG is perfectly capable of reaching decisions that are unpopular in political circles. However, that was not my concern.
The point that I was trying to make is that the most recent problems with the UPC Agreement point to invalidity under INTERnational law, whereas the BVerfG will only be concerned with problems under Germany’s national (Basic) law. It is possible that there will be a way to join the dots between the two. However, it is not clear to me whether it will be simple to join those dots. In particular, it may well be challenging to do so in a manner that is capable of persauding the BVerfG to void any law that purports to ratify the UPCA.
Dear Convention Watchdog,
Well done!
I fear we will have to wait even longer as expected!
May be time to rethink the whole thing. There are enough drawbacks, that it would be wise to think out a better system.
An interesting view coming from Ireland!
https://www.lexology.com/library/detail.aspx?g=643fcd24-d3b1-4ac2-8085-9ab45b01aa72&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-07-24&utm_term=
One thing is sure Art 7(2) remains a stumbling block