Having been teaching Public International Law since 1990 and being a tenured professor of this field of law, this author has some difficulty in understanding the state of collective nirvana that the UPC Preparatory Committee has instilled amidst the UPC community, by causing them to believe that the “Protocol to the Agreement on a UPC on Provisional Application” (the “PPA”) came into force on 19 January 2022, after Austria became the 13th Member State to express its consent to be bound by the PPA. For the reasons summarised below, if one thing is clear about the UPC, it is that the PPA is not legally in force.

For the readers’ benefit, it is worth remembering one of the Recitals of the PPA:

CONSIDERING that provisional application should only come into force when 13 Signatory States of the Agreement on a Unified Patent Court have approved this protocol and only among those Signatory States where the Governments have received parliamentary approval to ratify the Agreement on a Unified Patent Court.

As readers may have noted, the PPA requires the approval of national parliaments, which is the mechanism whereby external governmental action is controlled, in modern democracies.

Elaborating further on the Recital transcribed above, article 3 of the PPA states that:

Article 3 – Entry into force

(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, or informed the depositary that they have received parliamentary approval to ratify, the Agreement on a Unified Patent Court and have

a. signed in accordance with Article 2(2)a. or signed, and ratified, accepted or approved this Protocol in accordance with Article 2(2)b.; or

b. declared by means of a unilateral declaration or in any other manner that they consider themselves bound by the provisional application of the articles of the Unified Patent Court Agreement mentioned under Article 1 of this Protocol.

(2) In respect of any Party which subsequently after the entry into force of this Protocol completes the procedure referred to in (1), this Protocol shall have effect on that Party from the date when the Party has completed the said procedure.

(3) This Protocol and the provisional application it prescribes shall have effect only with regard to Parties having completed the requisite procedure referred to in (1).

Since article 3.1 requires the ratification of the PPA by 13 Signatory States, including Germany, France and the UK, one of the collateral damages of Brexit has of course been that, since, for obvious reasons, the UK’s ratification is now absent, the conditions required in article 3 for the PPA to come into force have not been fulfilled. It is as simple as that. So, after 19 January 2022, following Austria’s ratification of the PPA, we are at exactly the same place as on 17 January 2022, before that ratification had taken place.

As all UPC aficionados will be well aware, the UPC Preparatory Committee, at its 21st meeting, held in Luxembourg on 27 October 2021, in an attempt to bypass the requirement of article 3, proposed that the representatives of the governments that have consented to be bound by the PPA sign a “declaration” stating that the “authentic interpretation” of article 3 of the PPA is that this article should be read in the context of article 89 of the UPC Agreement (“UPCA”) of 19 February 2013. This morning the UPC’s Secretariat has kindly confirmed that this “declaration” has not been signed yet.

Readers will remember that article 89 states that:

1. This Agreement shall enter into force on 1 January 2014 or 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 or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EU) No 1215/2012 concerning its relationship with this Agreement, whichever is the latest.”

Since article 89 of the UPCA, in contrast to article 3 of the PPA, does not mention the UK explicitly, the Preparatory Committee proposed to interpret article 89 as requiring the ratification of 13 Member States, including Germany, France and, after Brexit, Italy. The next mortal jump to try to circumvent the requirements of article 3 of the PPA is to “interpret” that it does not say what it says, but what article 89 of the UPCA would say, according to the interpretation of the Preparatory Committee.

For the reasons summarised below, this “interpretation” would be at odds with very basic principles of public international law.

First, it ignores the so-called Vattel’s Rule, widely accepted by international courts, whereby clear provisions do not need to be interpreted (“in claris non fit interpretatio“). Interpretation presupposes an ambiguity in the text of the treaty. Ambiguity is the prerequisite of interpretation. This was already highlighted by the Permanent Court of International Justice (the predecessor of the International Court of Justice) exactly 100 years ago in its Opinion on the Competence of the ILO to Regulate Agricultural Labour:

If there were any ambiguity, the Court might, for the purpose of arriving at the true meaning, consider the action which has been taken under the Treaty.”

Certainly, there is no ambiguity in a provision that states that “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, or informed the depositary that they have received parliamentary approval to ratify, the Agreement on a Unified Patent Court […].” The reader of this provision must simply verify whether or not 13 Signatory States, including Germany, France and the UK, have ratified it. Within non-interested public international law circles, the proposition whereby the “interpretation” route would allow one to read “Italy” where it says “United Kingdom” would be perceived as amusing, to say the least.

Second, the “declaration” proposed by the Preparatory Committee would deprive national parliaments of the mechanism of control required in the Recitals of the PPA. The proposal that the representatives of Member States, during a coffee break of one of their COREPER meetings, should sign a declaration amending what their parliaments allowed them to ratify, will not rank very highly in the handbooks of European democracy. The Preparatory Committee does not seem to be taking into account that international treaties have a dual nature. On the one hand, they are agreements between states. On the other hand, as with any other type of law, they confer rights and obligations on citizens. Hence the importance of not disparaging their representatives by trying to find cunning ways to circumvent national parliaments.

Third, from the perspective of articles 31 and 32 of the Vienna Convention on the Law of Treaties (“VCLT”) of 1969, proposing that a later treaty (the PPA, which was signed on 1 October 2015) should be interpreted in the context of a previous treaty (the UPCA, which was signed on 19 February 2013), is a very odd proposition indeed. For article 31 of the VCLT states that it is the later agreements which may be used, if needed, to interpret the meaning of the provisions of a previous international treaty. So, it is undeniably article 3 of the PPA (2015) and article 18(1) of the Protocol on Privileges and Immunities, which was signed on 29 June 2016 and which also requires the ratification of the UK for coming into force, which may be used to interpret article 89 of the UPCA (2013). Not the other way round.

Fourth, and in line with the last part of the previous point, leaving aside article 3 of the PPA, from the perspective of public international law, it is not even safe to conclude that article 89 of the UPCA may be interpreted as requiring the ratification of Italy in lieu of the UK. According to article 31.1 of the VCLT, which enshrines the so-called “golden” (i.e. primary) rule of interpretation:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Beginning with the “good faith” requirement, I leave it to the readers to judge for themselves whether reading “Italy” where it says “UK” overcomes this first hurdle.

Moving on to “context“, the references to “Paris”, “London” and “Munich” in article 7(2) of the UPCA confirm that, as everyone familiar with the genesis of the UPC project is well aware, article 89 is implicitly referring to France, the UK and Germany. According to paragraph 2 of article 31, the “context” mentioned in paragraph 1 comprises any subsequent agreements between the parties regarding the interpretation of the treaty or the application of its provisions. Hence, article 3 of the PPA (2015) and article 18(1) of the Protocol on Privileges and Immunities (2016) form part of the context that, together with article 7(2) of the UPCA, confirm that the countries implicitly referred to in article 89 of the UPCA are Germany, France and the UK.

Finally, regarding the “object and purpose“, the last interpretative element in article 31.1 of the VCLT, as is well known, the purpose of the UPCA was to establish a unified patent court for the settlement of disputes relating to European patents and European patents with unitary effect (article 1) with a central division that would have its seats in Paris, London and Munich (article 7.2). This further confirms that, as already mentioned, the three Member States implicitly referred to in article 89 of the UPCA are Germany, France and the UK. The fact that the latter has in the meantime ceased to be a Member State is no reason to try to make article 89 say what nobody intended it to say and, more importantly, what it effectively does not say. It is a reason for amending article 89 and article 7.2 of the UPCA following the procedure established for the amendment of treaties in Part IV of the VCLT.

In conclusion, this author finds it fascinating that the patent community is entertaining itself discussing the nitty gritty technicalities (bifurcation, forum shopping, will the Court of Appeal allow appeals against interim orders, etc.) of this project when, in reality, the big picture is still entirely up in the air.

The fact that amending the UPCA and related agreements may take time and that this would further delay the coming into force of this long-awaited project, does not justify the lack of respect for the rule of law and for the democratic principle. Neither the eagerness to see the UPC in place without further delays, nor the likelihood or unlikelihood of being caught, justify the blatant disrespect for the fundamental principles on which the European Union is supposed to be founded.


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35 comments

  1. Miquel, it is hard to find fault with any one of the four reasons that you have given as to why the PPA is not in force. Indeed, I wager that not even the UPC’s most ardent supporters could generate a logically consistent (never mind persuasive) counter-argument to any of those reasons. Nevertheless, I rather think that you are missing the point.

    As has been repeatedly demonstrated, the UPC has very strong political support in all of the right places. Also, the levels of political support are perhaps not unrelated to the fact that the architects of the UPC (who just happen to hail from firms that stand to benefit handsomely from the advent of the UPC) appear to have very strong political connections, or at least well-placed, effective lobbyists.

    With strong political support, and with that support carefully guided in the right direction by the UPC’s architects, it is hard to imagine how the project could fail. Remember, where there is a (political) will, then there will be a way.

    The problem here is that all of your arguments relate to provisions of international law. Because there is no international court that has jurisdiction to (sensibly) interpret and enforce such laws, the citizens of Europe have no choice but to rely upon their national governments to adhere to the rule of law. In this instance, it seems that all of the relevant national governments have no intention whatsoever of doing this.

    It may be a different story if any arguments can be found regarding incompatibilities with a national constitution or EU law. However, as demonstrated by the fate of the challenges to the second UPC law in Germany, even good arguments on those points may fail to persuade certain (politically connected / influenced?) courts.

    Personally, I think that the most worrying aspect of all of this is the apparently large number of candidates for positions as UPC judges. This is because any judge worth his or her salt will surely see the force of your arguments, and hence conclude that, as yet, there is no LAWFUL basis for their employment by the UPC. Therefore, any judge who nevertheless accepts a position with the UPC will, by necessity, have made it impossible for them to be (perceived as being) impartial regarding the assessment of any challenge to the legal basis for the UPC.

    Having no judges that will be capable of (impartially) handling legal challenges that are certain to be raised by some litigants will hardly be the best look for the UPC. It will also be a dark day for democracy and the rule of law in Europe.

  2. How would the author of the article consider the legal ramifications of the fact that the UK did indeed ratify the agreement? Does the withdrawal of the ratification have the legal effect that the UK ratification never existed or are these circumstances simply outside the clear wording of the agreement?

    1. So would that argument be based upon yet another (“creative”) interpretation of the legislation, in which the term “have … ratified” is viewed as referring to the past tense only?

      Setting aside the obvious counter-argument (that a common sense interpretation of “have … ratified” includes a requirement for the ratification to still be in effect), what would be the implications of accepting such an interpretation?

      Firstly, would you have viewed the PPA as having “entered into force” if, for example, both France and Germany had also withdrawn their ratifications before Austria expressed its consent to be bound by the PPA?

      Secondly, if, despite its withdrawal, the UK’s “ratification” is still viewed as having legal effect under Art 3 PPA, would that not mean that the PPA did not enter into force in January 2022, but instead in October 2021, when Slovenia provided notification of their ratification of the PPA? If so, I suggest that you contact the UPC Preparatory Committee to get them to correct their contradictory statements on when the PPA “entered into force”.

      Finally, if the UK’s “ratification” still has legal effect under Art 3 PPA, would that not mean that the UK’s “ratification” of the UPCA also continues to have legal effect? If so, what might this mean for the “interpretation” of Art 7 UPCA?

      Let’s face it, if you are looking for “creative” interpretations of the legislation that might overcome Miquel’s arguments, then your suggestion is not going to get you very far. Better luck next time.

    2. Thank you for your comments, I am happy to see that the blog sparkled some debate. That was its purpose!

      You see, one of the problems is that the UK withdrew its ratification before Germany’s ratification, which is still pending.

      Cheers.

      Miquel

  3. Is the UK still deemed to be a Signatory State in the sense of Article 3 of the PPA, or can the reference to the UK be deemed voided by the UK’s withdrawal?

  4. The Legal Service of the Council is maintaining the webpage where the entry into force has been announced.

    It also holds the power to collect the ratifications and interpret the conditions for its entry into force.

    Since this agreement is outside of EU law, I suspect there has been some pressure to declare it into force, as they might know none of the participating countries will dare to file a complaint at the International Court of Justice (ICJ), and not at the CJEU since it is not part of the agreement (good riddance some patent specialists will say).

  5. I can only but agree with Mr Montañá.

    What is going on is actually a scandal.
    It is indeed the mere denial of the rule of law and opening the door to a legal jungle.

    As far as Art 31/32 VCLT are concerned, I could at a pinch accept that a common declaration on Art 89 UPCA could replace the ratification of the UK by Italy. But certainly not as far as Art 3 of the PPA is concerned in which the UK is mentioned expressis verbis.

    The preparatory committee announced the signature of a protocol amending the PAP. Nothing like this happened, or did I miss something?

    Art 3 PAP is crystal clear and does not need any form of interpretation, just because it helps some vested interests.

    The PAP has not legally entered into force. It can only be considered to be enter into force by a coup from the secretariat of the Commission. The secretariat has created ab nihilo an accomplished fact. This is not the rule of law.

    Whatever happens, Art 7(2) UPCA is still valid and needs to be amended before the opening of the UPC.

    In a conference about the UPC, Me Véron, a staunch supporter of the UPC, announced that negotiations would be held at the highest level in order to solve the problem of Art 7(2) UPCA before the actual opening of the UPC.

    The problem is that there is no need for an interpretation of Art 7(2) UPCA as its wording is crystal clear.
    According to Art 31 VCLT “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.

    In how far does Art 7(2) UPC need to be interpreted? This is the text which has been ratified by the parliaments and only the ratification of a properly amended UPCA could remove the problem.

    What is it good for the Commission to start actions against some East European member states for not respecting the rule of law, if pushed by a very strong lobby, the Commission itself denies the rule of law.

    I also agree with Concerned Observer that it cannot be expected that judges accepting to sit at the UPC under the present conditions, can be truly independent. By getting a salary from the UPC, they have vested interests in the UPC and can thus not be considered independent.

    I have been told that some potential UPC judges are counting the income they miss due to the late entry into force of the UPC. And those judges should be independent?

    Beside the allegation in Art 20 UPCA that the UPC shall apply Union law in its entirety and shall respect its primacy, there is no guarantee that the UPC can be considered as a Court of the EU member states.

    Asked why the UPCA was not submitted to the CJEU to check its compatibility, Me Véron replied that nobody thought of it! If you believe it, you still believe in Father Christmas.

    At the UPC (and at the EPO) there are only two degrees of jurisdiction but no instance of revision in the normal meaning of the concept that is in substance. Revision can only be obtained on procedural matters. Can such an arrangement be in conformity with Union law? Doubts are permitted as in all EU members states there are three degrees of jurisdiction, even at administrative level.

    But why bother with the rule of law in view of the possibility for all the supporters of the UPC to fill their pockets?

    After Brexit, some legal “specialists” claimed that since the UK ratified the UPCA it could still remain a contracting state. The withdrawal of the ratification simply means that there has not been a ratification.

    The corresponding circumstances are not simply outside the clear wording of the agreement. Parts of the agreement need to be revised in a legal correct way and not by arrangement of some governments manifestly ignoring the rule of law and trying to misuse the VCLT.

  6. I think that the opinnion expressed here do not sufficiently consider the will of the Contracting Member States. As with other contracts as well, a gap or an obstacle does not necessarily result in the situation that the contract needs to be concluded again. Art. 31 VCLT allows to take into account the “object and purpose”. These objects and purposes can still be achieved without the UK being a member state, in particular, if the other Contracting Member Staes wish to continue.
    The third sentence of Art. 31 adds to this all subsequent agreements on the interpretation of the treaty or the application of its provisions, all subsequent practices in the application of the treaty which demonstrate the agreement of the parties on its interpretation, and all relevant rules of international law applicable in the relations between the parties. Art. 32 Art. 32, on the other hand, provides for supplementary means of interpretation. These supplementary means of interpretation include the preparatory work on the treaty and the circumstances of the conclusion of the treaty.
    It is clear that the will of the Contracting Member States is precisely in favor of maintaining the Protocol (and ultimately the UPC). There is no indication why the basis for the introduction of the Unified Patent Court should completely cease to exist as a result of Brexit. Rather, the treaty must be interpreted as a whole and its aim and purpose must be taken into account.
    Among other things, the introduction was intended to save the respective users and participants time and money for patent protection in Europe. The idea and vision was and is that an owner of a European Patent can enforce patents centrally, without the danger of deviating or even contradicting decisions for its infringement case.
    For these considerations, there is at least the possibility that the protocol and UPCA are considered as legally valid, in accordance with the will of the member states. As UPC decisions are directly enforceable, I can’t see, which national authority should then stop these enforcements if the Contracting Member States are still in favour of the UPC.
    Thus, I would rather prepare for the UPC than sticking to a pure literal interpretation of legal documents, ignoring the will of the Contracting Member States.

    1. “I think that the opinnion expressed here do not sufficiently consider the will of the Contracting Member States. ”

      The will is clear but also the law is clear. Thus, why the CMS do not want to amend the UPCA and the PAP according to their will?

    2. Imagine the UPC orders a company to stop infringement, and the douane/authorities step in.

      And then the “infringing” company steps to court to stop the authorities from intervening, pointing out the flaws of this construct and how it came to be.

      I wonder if all national courts in the member states will say “not my business, this is not for national courts anymore”….?

      Might cause even more priblems than just asking Strasbourg beforehand …

  7. Contrary to what has been asserted above, the Protocol on Provisional Application (PPA) of the UPC Agreement has entered into force in a legally correct manner.

    The reasons are as follows.

    In view of the primacy of EU law, anything in the PPA and the UPC Agreement itself that is in violation of EU law is null and void.

    For the reasons set out below, participation of non-EU states in the UPC Agreement is a violation of EU law, and that means that since Brexit, UK participation in the UPC Agreement and its PPA is a violation of EU law. This means that
    – where the PPA requires a ratification by the UK, that requirement is null and void, so that it suffices for the PPA to enter into force that it has been joined by 13 states including Germany and France, and
    – where the UPC Agreement refers to London as a seat of a part of the UPC Central Division, such references are a violation of EU law that can be addressed by the UPC Administrative Committee under Article 87(2) UPC Agreement. The Administrative Committee could do so e.g. on 8 AM of the morning that the UPC Agreement enters into force, so that when at 9 AM the UPC opens its doors, it has a Central Division with seats that each have a clear jurisdiction laid down in the UPC Agreement.

    The reasons that only EU states can join the UPC Agreement are as follows:

    1. Under the AETR decision C 22/70 of the EU Court of Justice (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61970CJ0022), each time the EU, with a view to implementing a common policy envisaged by the Treaty on the Functioning of the EU, adopts provisions laying down common rules, whatever form they may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules or alter their scope.

    As the UPC Agreement comprises several aspects that touch EU law, e.g. the EU regulations on Supplementary Protection Certificates, the EU IPR enforcement directive, and the EU regulations on the unitary patent, the EU states are prevented from entering into a UPC Agreement together with non-EU states like Switzerland, Turkey, Norway, and – after Brexit – the UK.

    2. Under Opinion 1/09 of the EU Court of Justice (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62009CV0001), it is for the national courts and tribunals and for the Court of Justice to ensure the full application of European Union law in all Member States and to ensure judicial protection of an individual’s rights under that law. Consequently, the Member States cannot confer the jurisdiction to resolve disputes between individuals in the field of patents on a court created by an international agreement which would deprive those courts of their task, as ‘ordinary’ courts within the European Union legal order, to implement European Union law and, thereby, of the power provided for in Article 267 TFEU, or, as the case may be, the obligation, to refer questions for a preliminary ruling in the field concerned. However, it would be OK to confer such jurisdiction to a court that is like the Benelux Court common to a number of Member States, and situated, consequently, within the judicial system of the European Union, so that its decisions are subject to mechanisms capable of ensuring the full effectiveness of the rules of the European Union.

    As the draft agreement discussed in CJEU Opinion 1/09 intended to cover non-EU states like Switzerland, the draft agreement would establish a patent court outside the EU legal order that is incompatible with EU law. However, a patent court common to EU states only would be within the EU judicial system and thus compatible with EU law.

    This shows that where the UPC Agreement and its PPA refer to non-EU states like UK, such references are a violation of EU law, and thus null and void in view of the primacy of EU law and an issue that can be repaired by the UPC Administrative Committee under Article 87(2) UPC Agreement.

    The candidate UPC judges thus have nothing to worry about as regards the legal basis for their employment.

    1. “participation of non-EU states in the UPC Agreement is a violation of EU law”

      Well, it seems that this has not always been the “official” line of the UPC’s strongest proponents. I recall that, after Brexit but before withdrawal of the UK’s ratification, there was a time when even Prof Tilmann accepted – as per the arguments of Gordon and Pascoe – that Brexit was no barrier to the UK’s participation in the UPC.

      You will therefore have to forgive me if I disagree with your statement. After all, the UPC is, by nature, a court established by international law, and NOT by EU law. This legal basis for the establishment of the UPC is not in any way changed by a provision of the UPCA which merely indicates the laws upon which the UPC, once established, will base its judgements.

      Of course, there is a flip side to the UPC being a court established under international law (and having no appeal / remittal connections with national courts of EU Member States). That is, according to principles that have been firmly established by CJEU rulings, the UPC will not qualify as “court or tribunal of a Member State” in the sense of Article 267 TFEU.

      Thus, if you are looking for a “violation of EU law”, look no further than that UPC Agreement. This is because it purports to establish an international court that supplants national courts of EU Member States and interprets and applies EU law BUT is an international court that (according to CJEU case law) is not eligible to make preliminary references to the CJEU. As I recall, the CJEU has consistently frowned upon this the kind of set-up, as being inconsistent with the autonomy of the EU legal order.

    2. “a court that is like the Benelux Court common to a number of Member States”

      The Benelux Court is a common court between Member States, because it collaborates with national courts, who are the Guardian of EU law (under TEU 19(1)), as clarified by the CJEU in its 1/09 opinion:

      https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62009CV0001

      “66. As is evident from Article 19(1) TEU, the guardians of that legal order and the judicial system of the European Union are the Court of Justice and the courts and tribunals of the Member States.”

      UPC is not a common court between the Member States, as it replaces the National Courts.

      You will find the same reasoning in Achmea decision (2018) on the dissolution of intra-EU ISDS courts.

      It was in the first Stjerna’s complaint in 2017:

      https://www.lexology.com/library/detail.aspx?g=bfe0c73a-8b0e-4e37-9efd-f1407e3e9a92

      “Violation against European Union law: The complainant argues that the Unified Patent Court doesn’t comply with the requirements that the Court of Justice of the European Union (CJEU), relying on Article 4 subsection 3 and Article 19 subsection 1 of the Treaty on European Union (TEU) and Article 267 of the Treaty on the Functioning of the European Union (TFEU), has established as regards the creation of an international court within the legal system of the European Union. Neither would it be the case that the UPC is a common court of Member States as is the case for the Benelux Court of Justice. The complainant highlights that the UPC isn’t embedded in the system of the CJEU and national courts and would therefore breach the principles of autonomy of Union law and of the completeness of the system of legal remedies. This would infringe the cooperative relationship between the national courts and the CJEU.”

      Now the question is why the German Constitutional Court did not escalate this point to the CJEU?

      1. “Now the question is why the German Constitutional Court did not escalate this point to the CJEU?”

        The German Constitution decided to ignore the EU law problems, citing its previous practice:

        https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2021/06/rs20210623_2bvr221620en.html

        “With exception of violations of EU Charter of Fundamental Rights […] infringements of EU law can generally not therefore be challenged in constitutional complaint proceedings”

        Now the possible non-compliance of the UPCA with the treaties has still not been addressed. TEU 19(1) is the CJEU and the Courts of the Member States (see opinion 1/09). EU law is being outsourced to a court which has no link with the Courts of the Member States.

        While the Benelux Court design complies with 19(1) because it talks to National Courts of BE/NL/LU, the UPC does not talk to any national court.

        Putting a label on the UPC to declare it’s a common court won’t change this design flaw.

  8. Why the PPA is legally in force
    Winfried Tilmann
    A comment on Miquel Montañá’s blog
    1. Binding confirmation by the GS
    The General Secretariat (GS) of the EU Council as depositary of the PPA (Art 2(4) PPA) has confirmed that the requirements of the PPA’s entry into force pursuant to its Art 1-3 have been fulfilled with Austria’s PPA ratification. This confirmation binds the CMS, because they have installed the GS just for that purpose. They have entrusted the GS with the task of taking account of all relevant legal aspects of the entry into force of the UPCA, the PPA and the Protocol on Privileges and Immunities (PPriv) (Art 76(2) VCLT). Moreover, there is no other instance competent to decide on the question of entry into force of the three legal bodies: The CJEU lacks competence (the PPA is part of an international treaty system). The ICJ may only be called upon, if all CMS have accepted its jurisdiction, either in general, in the UPCA or in the PPA (this is not the case), or ad hoc (there is no signal for such an ad hoc acceptance of even one CMS, not to speak of all CMS). The UPC has not opened its doors, and once it will have started to work the entry into force of the PPA is an obsolete question.
    This one consideration, Miquel, already answers your question, alea iacta, or better: the Rubicon has already been crossed. But I will continue trying to answer the various arguments which the GS, in your opinion, would have had to consider.
    2. 13 CMS have expressed their consent to be bound by the PPA
    The GS, in its notification, has communicated which way to express their consent to be bound by the PPA (Art 2(2) and (3) PPA) the different states have chosen. Ratification, Miquel, stressed by you is not the only way to express this consent; a unilateral declaration is another one (Art 2(3) PPA; Art 13 VCLT). Art 2(3) PPA has left it to the CMS to decide how to express their consent to be bound according to their internal constitutional requirements. In some Member States this could be done by a unilateral declaration without ratification by the national Parliament. This is not anti-democratic (as suggested). It has to be borne in mind that all 13 CMS have received parliamentary approval (in Denmark even approval by means of a referendum) for the UPCA itself. Since the PPA is only an intermediate step towards the entry into force of the UPCA and has no independent significance, it can be assumed that a parliamentary approval of the UPCA implicitly also relates to the PPA.
    3. Legal reasons probably considered by the GS
    a) The GS has not disclosed to the CMS and to the public the legal reasons it has considered regarding the effects of UK’s withdrawal on the PPA’s entry into force. However, such information is not foreseen in the PPA and the UPCA and, therefore, is not necessary for the binding effect of its confirmation to take effect. We can only speculate on the reasons considered.
    b) The GS may have taken into consideration the provision of Art. 2(a)(v) of the EU-UK Withdrawal Agreement (WA) stipulating that the agreements between Member States entered into in their capacity as Member States of the Union are to be considered for the purposes of the WA as Union law which, as far as they concern the UK, cease to be applicable, if they are not expressly upheld by the rules of the WA at the end of the transition period (which is not the case for the UPCA and for the PPA). Art. 2(a)(v) WA is applicable not only to agreements being in force but also to agreements awaiting entry into force but already originating obligations for the signatory states which is true for the UPCA and the PPA (Art 18 VCLT).
    c) The GS will also have applied the common rules of international treaty law, including the provisions of the Vienna Agreement on the Law of Treaties (VCLT), and their effect on the interpretation of the PPA.

    4. Application of the VCLT
    Turning to the VCLT, which of its rules are applicable for a case, as present, of treaty rules referring to a signatory state who definitely will not ratify the treaty?
    a) What are the facts the GS had to consider?
    (1) The UK is a UPCA-signatory state whose position (a) because of the withdrawal of its ratification of the UPCA and the PPA and (b) because it is no more an EU-MS and (c) because it does not want to become an EU-MS again (Brexit), must be considered to be as irrelevant for the “working”, the “force” of the UPCA and the PPA as the position of (i) a non-signatory EU-MS/EPC-MS like Spain or (ii) a Lugano-MS/EPC-MS like Switzerland or (III) an EPC-MS but neither EU-MS nor Lugano-MS like Turkey (and now the UK) or even (IV) a non-EU-, non-Lugano-, non-EPC-MS like the USA, Japan, Korea and China.
    (2) This outsider position of the UK (EPC-MS, no EU-MS, no Lugano-MS) arose after the signature dates of the UPCA and the PPA and, from the point of view of all signatory states at the respective signature dates, completely surprisingly.
    (3) The purpose of the rules in Art. 7(2) UPCA (London part of the central division), Art. 89(1) UPCA (entry into force of UPCA) and Art. 3 PPA (entry into force of PPA) is to respect the political and economic weight of the UK and its importance for the UPCA in terms of the number of patent applications and the expertise of its judges. The UK itself no longer claims this respect. From the perspective of the remaining EU Member States this weight of the UK for the UPCA is no longer relevant since the UPC was created as a common court of EU Member States without participation of third countries.
    (4) From the perspective of the international patent community, the UPCA continues to appear useful without the UK’s participation. None of the other signatory states has expressed that the UPCA is of no interest to them after the UK has ceased to participate. On the contrary, all signatory states (apart from Poland, which currently refuses ratification for other reasons) have continued to participate in the preparatory work, and some have even ratified the PPA after the UK left.
    b) Now, how will the GS have read the VCLT-rules regarding these facts?
    (1) The entry into force of the UPCA and the PPA does not only depend on the wording of their entry-into-force-clause but also on a possible “agreement” of the contracting parties (Art. 24(1) VCLT: A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree). It may have been the view of the GS that the remaining UPCA signatory states (excluding the UK) have agreed (1) that the application of Art. 7(2) UPCA (London Part of the Central Chamber), Art. 89(1) UPCA (entry into force UPCA) and Art. 3 PPA (entry into force of the PPA) must take into account the new fact that the UK has irrevocably withdrawn from the circle of contracting states and (2) that the UPCA and the PPA should nevertheless enter into force without the need to sign and ratify a new version. In view of this situation, clearly understood and supported by all CMS, the GS may have come to the conclusion that a formalisation of this agreement (joint declaration), is not necessary to prove its existence under Art 24(1) VCLT (see 5. below).
    (2) Moreover, an interpretation of Art. 7(2) UPCA (London part of the central division), Art. 89(1) UPCA (entry into force UPCA) and Art. 3 PPA (entry into force of the PPA) leads to the same result. Art. 31(1) VCLT provides: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose). According to Art 31(2) VCLT, the context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, its preamble and annexes (principle of integration). One of the elements regarding the “context, objective and purpose” concerns the link between corresponding provisions between several treaties. If a treaty is linked to another one, consideration must be given to concordant interpretations between the two instruments. Thus, the Protocol must be read in light of the object and purpose of the UPCA.
    The object and purpose of the PPA is serving the preparation of the UPCA. The PPA is an ancillary (serving) agreement to the UPCA. It is not a stand-alone agreement to be interpreted for itself, in isolation. An interpretation in good faith in accordance with Art 31 VCLT leads to the result that the signatory states, when formulating the entry into force clause of the PPA, had the intention to mirror the entry into force clause of the Agreement (Art 89(1) UPCA). The signatory states therefore established that the same three Member States’ ratifications which were required for the entry into force of the UPCA were also required for the entry into force of the Protocol. They mistakenly believed to express this concordance by expressly naming the three states which indeed qualified for Art 89(1) UPCA at the time of the PPA’s conclusion.
    Therefore, the PPA’s mentioning expressly the three states F, G and UK must be seen as an imperfect reference to the states defined in Art 89(1) of the UPCA, the entry into force of which the PPA is obliged to serve.
    (3) What the VCLT definitely wants to avoid is arriving at an interpretation of a treaty clause which would lead to manifestly absurd and unreasonable results (Art 32 lit. b VCLT). Considering the circumstances of the conclusion of the PPA and its role as a mere preparatory step towards the entry into force of the UPCA it would be manifestly absurd and unreasonable within the meaning of Article 32(b) VCLT to assume that , while the UPCA itself can come into force without the UK, the PPA`s entry into force would require a participation of the UK which the UK refused.
    5. No interpretative declaration
    The GS, confirming the PPA’s entry into force, did not wait for a joint declaration of CMS-EU-ambassadors envisaged by the Preparatory Committee. Therefore, it must be assumed that it had arrived at the conclusion that such an explicit interpretative declaration, although possibly useful in political terms, was not necessary for legal reasons. Art. 2(a)(v) WA as well as the VCLT may have been the reasons, and I agree.

    1. “Moreover, an interpretation of Art. 7(2) UPCA (London part of the central division), Art. 89(1) UPCA (entry into force UPCA) and Art. 3 PPA (entry into force of the PPA) leads to the same result”

      So, according to this interpretation, UK becomes Italy and London becomes Milan, correct?

    2. Dear Winfried, thank you for your comments, I am happy to see that the blog sparkled some debate. That was its purpose!

      May I add that a depositary of an international treaty does not have any decision making powers (only the functions set out in art. 77 VCLT)

      Cheers

      Miquel

  9. To Mr Augenstein, Steenbeek and Tilmann,

    Nobody has ever said that the will of the contracting states should be ignored, but even if Art 31 has to be applied, it cannot be virtually applied.

    That Brexit does not mean the end of the UPC, but the end of the participation of the UK in the UPC is not a disputed fact. But the absence of the UK as one of the necessary signatories of the PPA remains a fact as it is written black on white in the PAP. It is also written in Art 7(2) UPCA which here again mentions expressis verbis London as one of the seats of the central (?) division. One should not forget the work in the preparatory phase of the UPCA which ended up with Art 7(2) UPCA as we know it. And now by intervention of the some spirit, since the UK is not any longer part of the UPCA we can ignore what has been signed and ratified. Please do not pull my leg.

    We were told by the Preparatory Committee that we will see the signature of a protocol under Art 31 about the PPA at a meeting of the COREPER.

    Have we seen such a protocol signed at the COREPER? Not to my knowledge, so all what is said here about the entry of force of the PAP appears prima facie irrelevant.

    The UPC has been designed to help the big industry and the lawyers gravitation around it to be the prime beneficiaries of the UPC and not the allegedly European SME’s!

    The story of savings is only valid if there is a validation in all the UPCA member states. In view of an average validation in 5 member states the story of the savings is not gullible. This fallacy should be brought to an end.

    Primacy of EU law, is a mere declaration of intention in the UPCA and now to come and claim that anything in the PPA and the UPC Agreement itself that is in violation of EU law is null and void is really laughable. It is not by declaring primacy of EU law that the UPCA is a treaty under Article 267 TFEU. I would rather claim it is not, as it misses one the important aspects of EU and national laws law that is the existence of three levels of jurisdiction.

    When now Mr Tilmann explains us that every is honky dory and it can simply be ignored that the UK has ever participated in the setting up of the UPC, with corresponding consequences on Art 7(2) it is no more than an interpretation which as valid as when he claimed that the UK could continue to participate to UPCA even when it had withdrawn of it.

    Dear lawyers, I expect a bit more serious agreements to be put forward, but not an argumentation which goes against the way the UPCA has been designed and more important ratified.

    If the UPCA enters into force and the UPC opens its doors it will be in violation of the UPCA itself and by legal coup resulting from a fait accompli by the secretariat with the aim of filing the pockets of the big industry and the lawyers supporting it.

    Stop taking us for a ride!

  10. The primacy of EU law does not follow from a provision in the UPC Agreement.
    Instead, that provision merely restates a key feature of EU law since the very beginning of the EU, see e.g. the CJEU decisions

    C 26/62 Van Gend & Loos (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61962CJ0026):
    “The European Economic Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights.”

    C 6/64 Costa v E.N.E.L. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61964CJ0006):
    “By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.
    By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves.”

    Further, EU Regulation 542/2014 clarifies that the UPC is a common court within the EU legal order.

    1. Leo, with all due respect, your arguments are based upon an elevation of form over substance.

      As I pointed out to Miquel, the UPC has very strong political support in all of the right places. This includes the European Commission and Parliament. It is therefore not at all surprising to me that EU Regulation 542/2014 effectively parrots the assertion in Art 1 UPCA that the UPC is a “court common to the Contracting Member States”. The problem as I see it is that there is simply no way to square that assertion with the (very clear) case law of the CJEU regarding the principle of autonomy of the EU legal order.

      I do not doubt that the relevant actors will be able to make the UPC a fait accompli by concocting reasons why the relevant agreements are (or will be) “in force”. Just do not expect me to agree that all of this is perfectly lawful, or that there is a shred of democratic legitimacy or accountability about the underhand way in which all of this is being done.

      Of course, the elephant in the room is the CJEU. Here is where uncertainty creeps in. That is, despite the fact that the CJEU has occasionally shown that it can be “sensitive” to political imperatives, the damage that the UPC will inflict upon the autonomy of the EU legal order may well be too much for even a panel of politically appointed judges to swallow.

      We shall just have to wait and see. Nevertheless, I remain astonished at the lengths to which the architects of the UPC will go, and the damage to the rule of law (and to small businesses) in Europe that they are prepared to inflict, simply to bring to life a court that will fill their pockets and please a small number of litigants.

  11. Dear Mr Stenbeek,
    If I am not wrong you are the head of the patent department of Philips.
    There is no reason to be afraid to acknowledge this fact.
    That you your company are a keen supporter of the UPC is thus no surprise and as such perfectly allowed to your opinion.
    It allows however to take your opinion not only with a pinch of salt but rather with a barge full of it.
    I can understand your pro domo plea in favour of the UPC, but it does remain an opinion and not a legal certainty as has been shown by many commenters on this thread.
    Since 2016 and the Brexit, it would have been ample time to amend the UPCA and the PAP. I never heard one sound reason for not doing so.
    You want your playground for big industry, but you should be well aware that you open a single point of attack against European industry in general and European SMEs in particular.
    With the present average number of validations those SMEs could leave happily within their borders and from time to time export a bit. With the UP/UPC system they have to leave in fear of being attacked by the big European and international industry.
    In view of the very short time limits of procedures before the UPC, they will have to react quickly which boils down to have quick financial resources if they want to be be able to defend themselves against infringement attacks. If they want to defend themselves by a nullity action the basic fee is nearly double. Do you think this is fair? I do not.
    Just a question: why no impact study of the UP/UPC system on SMEs has ever been undertaken? This was done for EPLA, but never for the UPC. Even Mrs Froehlinger, Mme UPC, has acknowledged this fact.
    The ceilings in recoverable damages is just for pleasing politicians who were very keen on swallowing all the drivel uttered by the pro UPC lobby. This lobby has for members the big industry and the big internationally active lawyer firms.
    When you see how Mr Tillmann has held the hand of the ministry of justice so as to mislead the MP when the second ratification bill was presented to the German parliament, it is disgrace to say the least. Compare the explanatory note and an article of his in GRUR Int a few months before, the correlation is plainly manifest.
    Stop telling us legal gobbledygook which strangely is always changing in presence of newvproblems and come up with sound legal reasons!
    What all those staunch supporters of the UP/UPC are telling us is no more as a pro domo plea. You should at least have the decency of owing it up.
    The VCLT is a way to solve the problem, but what you are presently doing is misusing it!

  12. JURI Committee of the European Parliament, March 2020:

    “In case that the UK wanted to quit the UPCA [as it did in July 2020], the section of the Central Division of the UPC with responsibility for life sciences, chemistry and metallurgy cases with seat in London, will have to be moved. The London section would not be replaced automatically with another seat, as this would need an amendment of the UPCA by unanimous agreement of all other Contracting Member States.”

    Where is this “unanimous agreement”?

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