(UPDATED) Two new constitutional complaints against ratification of the Unified Patent Court Agreement have been filed with Germany’s Federal Constitutional Court.

The FCC confirmed to Kluwer IP Law it received the complaints: “Regarding the Act on the Agreement of 13 February 2013 on a Unified Patent Court, two constitutional complaints have been filed and are pending under 2 BvR 2216/20 and 2 BvR 2217/20. A decision date is currently not foreseeable. I cannot give you the names of the complainants for data protection reasons. The communication of any procedural events or information on components of the procedural file during the ongoing proceedings is not possible.”

According to several media reports, the complaints were filed last Friday, the very day the parliamentary ratification procedure in German ended with the approval of the UPC legislation by the German Bundesrat.

According to a report by Managing IP, the FCC declared a decision date was not known. “Neither the identity of the plaintiffs nor the grounds of the complaints are currently available.”

The complaints mean a new chapter in the ever longer history of the attempted creation of the Unified Patent Court and Unitary Patent system has begun.

After the Brexit referendum of June 2016, another severe blow to the project was dealt when in March 2017 patent lawyer Ingve Stjerna filed a constitutional complaint against the German ratification of the UPCA. It took the FCC three years to decide on the case, and it partly upheld the complaint as the UPC legislation had not been approved by the required two-thirds majority in parliamant. As this formal point was enough to declare the ratification procedure invalid, the FCC did not judge on other, substantial points Stjerna had raised.

After the FCC’s decision, last March, the German government speedily came with new ratification legislation, which was approved by a 88 percent majority in the German Bundestag late November and unanimously in the Bundesrat on 18 December 2020.

Without German ratification, the UPC nor the Unitary Patent can be launched. The new complaints could lead to further severe delays, although is isn’t clear whether the FCC will accept the complaints and request the German Bundespräsident to refrain from signing the UPCA legislation into law as long as it hasn’t decided on them, as happened when Stjerna filed his complaint in 2017.

Although it isn’t clear who have filed the two new complaints, there are two obvious candidates: Dr Stjerna once more, and the Foundation for a Free Information Infrastructure (FFII), whose president Benjamin Henrion has repreatedly stated he was preparing a claim. Henrion wasn’t immediately available for comment. The most recent post on the website of Ingve Stjerna, where he has been following and commenting on developments regarding the UPCA, is from 11 December 2020.

UPDATE: This blogpost was updated later on 23 December 2020 to include the reaction of the FCC to questions of the author and to add the remark about Dr Stjerna’s website.

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5 comments

  1. “although is isn’t clear whether the FCC will accept the complaints and request the German Bundespräsident to refrain from signing the UPCA legislation into law as long as it hasn’t decided on them.”

    Should not the same causes lead to the same consequences? Why should this time be any different than in the previous occasion? I suspect the new complaints do not raise fewer substantive issues than the previous one Mr. Stjerna filed.

    1. The Convention Watchdog:
      The same causes do no longer exist. The missing majority in the German Parliament (Bundestag) has been observed.
      Most of the other grounds submittd by the complainant were held inadmissible by the FCC in proceedings before the Law’s entry into force (note 103 et seq.). They can only be put forward by a complainant immediately adversely affected by an act of the UPC violating the complainant’s constitutional rights. This situation can only arise once the UPC will have become operative.
      Link to the decision:
      https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2020/02/rs20200213_2bvr073917.html;jsessionid=D42C575092614487C48AED25BBF69D31.1_cid377

  2. I am not as sure as “Convention Watchdog” that a complaint before the GFCC will be dismissed at once.
    This is certainly what all the pro-UPC lobbyists hope. Three reasons make me believe that this might not be the case. The whole discussion was not only about the necessary quorum for the ratification.

    There is still the problem raised in Point 106 of the March 2020 decision over the supremacy Union law over the German constitution. This point has been completely dodged in the explanatory note for the new ratification bill. Whether one agrees or not with it, it is a point which can play a role, as this stance was adopted by the GFCC when dealing with the complaint about the dealings of the EZB. The chair of the GFCC has changed, but the rapporteur is still the same.

    Some of the reasons brought forward by the then complainant were dismissed for lack of substantiation. It is difficult to see why they could not be brought in again with a better substantiation.

    Last but not least there is one big change in the overall situation. The UK has left the UPCA, but Art 7(2) UPCA still mention that a Section of the Central Division with specific duties should be located in London.

    In the explanatory note for the new ratification bill, this problem has been dealt with in a quite specious way. The duties of the London Section will be shared “provisionally” between Paris and London, and a new location can be found when the UPCA is first revised.

    This is an interpretation of the UPCA which is probably not shared by the other contracting states and especially not by those wanting the London Section to be transferred to their country. This interpretation is also not in line with numerous articles of the VCLT.

    Most important, this interpretation amounts to deprive a party to the UPC from its right for its legitimate judge. This is a real constitutional problem which can even be tackled under the ECHR.

    This important problem is best exemplified in all the comments made in the present blog under:

    http://patentblog.kluweriplaw.com/2020/12/18/german-bundesrat-approves-ratification-of-unified-patent-court-agreement/

    The best is to have a look at those.

  3. Dear Attentive Observer,
    the conflict between the FCC and the ECJ about the last word in interpreting EU Law in respect of the protection of national constitutional rights dates lasts for more than half a century (BVerfGE 37, 271 – Solange I) and it will hardly be solved in the context of the ratification of the UPCA. The FCC appears to mention it as a memento in pt. 106 of decision on the first complaint against the ratification. It is worthwhile to note that this aspect is mentioned among the grounds of complaint held inadmissible. Neither your comment nor the reference therein does explain how the lack of substantiation stated by the FCC can be improved because any argumentation has to b based on a violation of the democratic principle laid down in Art. 38(1) of the German Constitution which the FCC in its prima facie assessment at pt. 106 does not see.

    My comments have nothing to do with pro UPC or anti UPC, they are solely intended to contribute to a realistic assessment of the present situation. Quite a different question is whether it is wise to start the unitary patent system before a number of legal uncertainties have been clarified. In this respect, the most obvious choice would be to wait until the FCC has rendered its decisions on the pending cases concerning the EPO Boards of Appeal which may clarify the constitutional standards to be applied to international judges.

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