Even though the United Kingdom is expressly mentioned in the Protocol for Provisional Application (PPA) of the Unified Patent Court Agreement as one of the states that has to give its support to the PPA, this is not seen as a stumbling block for the entry into force of the Protocol by the member states of the Unitary Patent project.

That became clear during the 21st meeting of the UPC Preparatory Committee yesterday in Luxembourg. During the meeting, chairman Alexander Ramsey presented a ‘draft Declaration on the authentic interpretation of Art. 3 of the PAP-Protocol, following the United Kingdom’s withdrawal from the Unitary Patent System.’

According to the Declaration, article 3 of the PPA (where the UK is mentioned alongside France and Germany) is to be interpreted as mirroring article 89 of the UPCA. ‘The delegations supported the approach proposed by the Chairman, hence giving him the mandate to organize a signing ceremony of the Declaration, foreseen in the margins of a future COREPER meeting.’

Article 89 states the UPCA ‘shall enter into force (…) on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance with Article 84, including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place (…).’ Before the Brexit, these three Member States would have been France, Germany and the UK, which is the reason why they were mentioned in article 3 of the PPA.

According to a report of the UPC Preparatory Committee, the Declaration is ‘in line with public international law’, but it doesn’t elaborate. That is very unfortunate. Not only is the UK mentioned expressly in the PPA, also London is mentioned as location of one of the sections of the UPC’s central division in article 7(2) UPCA. As can been seen in the comments below a recent post on this blog, among others, the proposed solution to get the Unitary Patent project started without the UK is highly controversial. As ‘Concerned Observer’ wrote, for instance:

‘I can understand the train of thought (I hesitate to call it “logic”) in attempting to rely upon Art. 89(1) UPCA to solve the problem with the PAP. However, interpreting “the United Kingdom” to mean “Italy” does not help to solve the issue with Art. 7(2) UPCA, which instead refers to “London”.

In any event, this train of thought is, or at least by all rights ought to be, heading into the buffers. The very reason that drafting and ratification of a new UPCA is not on the table is that all of the UPC’s proponents want to avoid the risk that squabbles over relocation of the London division of the UPC could kill the entire project. In other words, it is abundantly clear that the current UPCA does not point to any implicit, or uniformly accepted, alternative meaning for “London”.’

Protocol on Privileges and Immunities

During the meeting in Luxembourg (and online), the UPC Preparatory Committee said support from only one more member state is needed for the entry into force of the PPA, currently expected for late 2021 or early 2022. It also pointed out that the Protocol on Privileges and Immunities entered into force as of the day of the meeting, 27 October 2021, one month after Germany deposited its instrument of ratification. So far there has not been much discussion about the PPI’s article 18(1), which states the United Kingdom has to support the PPI as well.

Other issues that were discussed concerned the finalization of the Case Management System of the Court, the framework for both the hiring of judges and the local selection of administrative support staff, and the draft budget for the PAP, ‘including a preliminary evaluation of the contributions by Member States, which will be called for shortly after the start of the PAP’.


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27 comments

  1. A clear VCLT violation, you cannot reinterpret crystal clear provisions to overhide Brexit.

    Now the question is how to challenge that in court.

  2. “It also pointed out that the Protocol on Privileges and Immunities entered into force as of the day of the meeting, 27 October 2021, one month after Germany deposited its instrument of ratification. So far there has not been much discussion about the PPI’s article 18(1), which states the United Kingdom has to support the PPI as well.”

    How to violate the Vienna Convention of the Law of the Treaties.

    https://www.quora.com/Is-it-true-that-Otto-von-Bismarck-said-The-agreements-signed-by-Russia-arent-worth-the-price-of-the-sheet-of-paper-they-are-written-on

  3. This attempt at “authentic interpretation” is baffling to say the least. No amount of “interpretation” can override the meaning of a legal text where there is no ambiguity. In Art. 7(2) UPCA, “London” unambiguously means “London”. And even more importantly, in the PPA, “the United Kingdom” unambiguously means “the United Kingdom”. Hence, the PPA cannot enter into force as written. Nothing is actually solved by this purported “authentic interpretation”.

    I fear that if this “train of thought” continues until the UPC is set up, the entire thing may crash and burn spectacularly at the first challenge before the ECJ where it is alleged that a decision of the UPC was handed down illegally because it should have been handed down in London.

  4. If you interpret Italy as being United Kingdom interpreting art. 89 UPCA (the three “necessary” MS are Germany, France and Italy) , then with the same “authentic interpretation” the three sections of art. 7 UPCA are based in Paris, Munich and Milan.

    1. Why Milan, and not, say, Livorno, Lecce, La Spezia or Lucca? After all, the names of all these fine cities in Italy starts with an L, like London, while Milan’s does not.

      Of course, I am being tongue-in-cheek here. The real point is that just because some proponents of the UPC would have things a certain way does not mean that the relevant legal provisions enable them to.

      Also, would it not be a little odd if the UPC contracting states went ahead with this blatant disregard of the clear letter of a treaty, while at the same time chastising a certain EU member state east of the Oder for allegedly doing the same?

      1. I was just referring to the sentence “However, interpreting “the United Kingdom” to mean “Italy” does not help to solve the issue with Art. 7(2) UPCA, which instead refers to “London”.” of the article.

        It the “authentic interpretation” is so powerful to create the United Kingdom of Italy, then the same interpretation can be applied, even more easily, to art. 7 UPCA, which can be interpreted as such: “The central division shall have its seat and two sections in three cities, each chosen by one of the three MS of art. 89 UPCA”.

        As I wrote before, I am stiil convinced that the only solution is to amend the PAP and the UPCA.

        P.S.: actually, there is a town called Londa in Italy

  5. After the “dynamic interpretation” and the “authentic interpretation” what next? The “100%-guaranteed interpretation”?

  6. Nobody discusses VCLT – Article 18 – Obligation not to defeat the object and purpose of a treaty prior to its entry into force
    A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
    (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or
    (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

    1. VCLT art18 “defeat the object and purpose of a treaty”

      The objective and purpose was to have a court split among 3 states, the relocation of the workload from London to Paris+Munich is defeating this objective.

      1. Yes, moreover the purpose was to have a court split among the 3 MS of art. 89 UPCA, so that the relocation can be only to an Italian town (e.g. Milan), not to Paris/Munich.

  7. “hence giving him the mandate to organize a signing ceremony of the Declaration”

    Democracy at work, none of those delegations have received any mandate from their national parliament.

    In CETA, only 3 parliaments over 28 discussed the text.

  8. The delegates to the Prep C have the mandate from their state to prepare for the UPC, and that is exactly what they did in my opinion. At the ceremony, the representatives who will sign will have received that power from their state. Parliaments only play a role in ratification/accession when needed, what I would think is not necessary here (I fully realise most of the previous commentators will disagree, that’s it).

    All this said, I would agree that the UPCA is as well drafted as the Regulations. The first cases at the UPC (+CJEU) will be interesting.

    1. “The delegates to the Prep C have the mandate from their state to prepare for the UPC”

      “Preparing for the UPC” are the new law makers.

  9. Maybe just a suggestion but why can’t the court be based in London? As far as I know, there was already a court room allocated and I expect that the UK government would not object to hosting a court although they themselves would not be subject to that court (in the same way the Yugoslavia tribunal was hosted by The Netherlands).
    This would leave only the difficulties in the PAP and the protocol on privileges, but as argued by MaxDrei in the quoted blogpost: if souvereign States together decide on the interpretation of a legal text, who will contradict them?

    1. Dear Bart,
      Main reason: as the UK has withdrawn from the UPC, the PPI is not any longer applicable.
      UPC judges would need a work permit which is in contradiction with free circulation.
      And Annex II would most probably also play a role.

  10. Even if might at a pinch possible to bring into force the PPA and PPI with the envisaged trick, the same trick will not work for Art 7(2) UPCA.
    Not only the text of it is crystal clear and does not suffer any doubts as to its meaning, but there is not only Italy but also The Netherlands want to get a section.
    Do you think really France and Germany will let go pharmacy and chemistry to either Milan or Amsterdam?
    The haggling is not only on the location but also about the domain.
    It is far from innocent that both have come up with the provisional allocation of the duties to Paris and/or Munich.
    An international treaty which has been ratified cannot be simply thrown over board for the satisfaction of private interests. There are rules to be respected and should they not have been respected, the decisions taken by a court in violation of an international treaty can and must be challenged.
    Why do the proponents of the UPC do not ask the opinion of the CJEU?
    The most probably do not so as the reply could be devastating for their h

  11. As to the question posed by DX Thomas, why doesn’t somebody ask the CJEU the question, what comes to my mind is that very old rule of advocacy. In fact, it might even be Rule No. 1 in The Ten Golden Rules of Advocacy. If I remember right, it goes like this: Never ask a question for which you do not already know the answer.

    And why is that so important? Why, because you might not get the answer you want, you might even get an answer that holes your case, below the water-line, irreparably.

    So, here, when every issue is, these days, so fuzzy, so over-laden with political considerations (including Germany’s ratification of the UPCA) I suppose nobody in the circle interested in the UPCA is confident enough to go to the CJEU and ask for its opinion.

  12. We oppose last week move by the unelected Preparatory Committee of the UPC to draft legislation behind closed doors to reinterpret the Treaty at their own will and fix the Brexit issue with dubious “Declarations”, and without the involvement of any Parliament. The Council of Ministers and this Preparatory Committee of the UPC suffer from a democratic deficit for too long. We are sick and tired of this european undemocratic law making behind closed doors by countries officials in the Council of the European Union (ex-Council of Ministers) in the name of our nations. Discussion on this point in the last COMPET Council by the Slovenian Presidency was done “off camera”. Representatives of participating states don’t have any mandate to do law making from their respective national parliaments. Nor they have a mandate to authorize the setup of a “Signing” ceremony of this Declaration. We call for a proper parliamentary debate in each of the participating states, with a clear negotiating mandate for each delegation. In the CETA debacle, only 3 national parliaments out of 28 discussed the content of the Treaty. National Parliaments are being bypassed and are treated like “recording chambers”. And if one parliament oppose this move, they will be accused to block Europe right?

  13. Dear Max Drei,
    You put your finger on where it hurts.
    Even before Brexit the promoters of the UPCA never asked the CJEU for an opinion.
    They knew too well that they might get an answer which would not please them, so that they told us that it was OK.
    Now with Brexit, they are ever less inclined to ask for an opinion.

  14. What was it I was saying about unelected and unaccountable civil servants effectively “amending” international laws by adopting absurd interpretations? The UPC is not even up-and-running and there are already plans to make precisely such an undemocratic manoeuvre.

    If and when the UPCA does come into force, it seems to me that national patent laws of the Participating Member States will no longer define the legal standard in those states. This is because it will be possible to use an “international” route to both obtain and enforce patents that are effective in those states … via organisations that evidently feel free to diverge wildly from any sensible interpretation of the laws that are supposed to govern them.

  15. The ability of UPC proponents to hold mutually contradictory beliefs continues unabated. Now we learn that, in order for the PAP to come into force, the Member States need to sign a Declaration on the “authentic interpretation” of Art. 3 of that Protocol. However, we also learn at the same time that PPI has already come into force without any such Declaration and despite the fact that Art 18 of that Protocol lists precisely the same mandatory signatories as Art 3 PAP.

    It is also telling that the Declaration is based upon the recognition “that Art. 3 of the PAP-Protocol is to be interpreted as mirroring Art. 89 of the UPCA”. This is because Art 89 UPCA is written in such a way that it does not identify the mandatory signatories by name. Unless I am mistaken, this represents an attempt to kick the can down the road when it comes to choosing the new location for the London division of the UPC. This is because the Declaration could hardly name Italy without implying any consequences for the purported “authentic interpretation” of Art 7(2) UPCA.

  16. In the recent paper “The Benelux Alternative to the UPC” by Thomas Jaeger, he mentions the UPC might be killed by the CJEU if one country asks for it, using the same line of thought as for CETA, intra-EU investment courts. Time to convince a country to escalate this mess to the CJEU. Belgium for the first to do after the CETA debacle.

  17. Replacing UK by IT is only possible as far as the ratification is concerned.
    Any further attempt to do the same for the PPI or the PPA lacks any basis even under the VCLT.
    The wording is crystal clear and does not suffer any need of clarification.
    This is even more the case for Art 7(2) UPCA.
    The promoters of the UP/UPCA should at least have the decency to check with the CJEU to check if it can endorse this legal gobbledygook.
    The hope for the big buck especially for lawyers firms is such that they could not care less about decency and rule of law. They have lured politicians all the way along.
    Whatever the fate of the UPC will be, the setting up of the UP/UPCA system will remain a landmark if the field of lobbying.

  18. One of the promoters of the UP/UPCA has published in French an article in which he considers that the people opposing the UPC are pessimists, hypocrites and enemies of progress.

    If proponents of the UPC need this kind of argument, then they must be at their wits ends. It reminds me of another well known proponent of the UPC telling in this block that the opponents of the UPC are simply incapable to understand and are frighten on it.
    See under
    https://www.dalloz-actualite.fr/flash/soleil-se-leve-enfin-sur-juridiction-unifiee-du-brevet#.YV27q7gzY2w

    For this person Art 7(2) UPCA and Annex II are no more than a practical provisions with no legal effect (sic).
    It is thus likely for this person that any adjustments required as a result of Brexit can be made by the Administrative Committee without the need for Member States to re-ratify an amended agreement.
    I have rarely read something as flabbergasting coming from a person holding a PhD in law!

    All the proponents of the UP/UPCA know too well that should new ratifications be necessary the UP/UPCA would be as dead as the famous Monty Pythons parrot.
    Any legal gobbledygook is thus good to avoid a new round of ratifications.
    Art 31 and 32 VCLT are carefully left aside.

  19. DXThomas, you put your faith in the VCLT. I’m not yet convinced that it can help you.

    Is not the VC there for the benefit of sovereign States that conclude Treaties with other such States, and then discover that they understand differently that which they have signed? If so, the VC only gets involved when there is a dispute between UPCA Member States, about the meaning of the UPCA. To me, that seems somewhat unlikely.

    Meanwhile, when the UPC issues a court order to a manufacturer to stop making and selling their product, and the enjoined manufacturer seeks to appeal that judgement. Where does that path take the Appellant? To the CJEU, I guess.

    And with what argument will the enjoined manufacturer engage the CJEU? I suppose, that the court issuing the injunction has no right to issue such injunctions. Imagine the delight in Poland and Hungary, when such a line of appeal is pursued, and likely succeeds. Has the EU Commission thought for a moment how its determination to continue to champion the UPCA will end? With egg all over its face, the butt of ridicule from countries with no respect for The Rule of Law. Not a good prospect, in my estimation.

    Putting all that aside though, as I said earlier, which manufacturer will pursue the dispute through the courts that far. Rational actors are more likely to settle with the other side than fight each other all the way to the CJEU. If so, it will be ages before the illegality of the UPCA is exposed, long after all those UPCA implementation cttee members have retired, to live off the accumulated profits of the law firms in which they were once partners.

  20. Apart from the political issues, there is no reason why “provisionally” transferring the London section to Paris and/or Munich should be not more legal (or less illegal) than transferring it to Milan, Amsterdam or any other EU town.

    Who knows why the UPC promoters see no issue in interpreting “UK=Italy” but are very reluctant to see its obvious consequence, i.e. “London=Milan”?

  21. The authors of such draft Declaration might be afraid of any legal service checking whether this is in line with the VCLT.

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