Yesterday I have already reported about the annual Premier Cercle conference in Munich. Besides the obligatory discussions on the Brexit, the most important new element we could learn at the conference was the information from the Preparatory Committee on the number of judges that have applied for the UPC.
Everybody who wished to apply for a position as judge for the Unified Patent Court could do that until Monday July 4 2016 at midnight. Gyorgy Kozma, chair of the HR working group within the Preparatory Committee, informed us that the PrepCom received 840 applications for legally qualified or technically qualified judge.
17% of these candidates are female and 83% are male. 42% of the candidates have an age between 25 and 45. 6% are 61 years old or more. That means that the vast majority (52%) of the candidates are between 45 and 61 years of age.
40% (336) of all candidates originate from Germany. 132 candidates (16%) come from France and about the same number of candidates (16%) originate from the UK. Also from Italy, a lot of applications came in. Approximately 14% of all applicants originate from Italy. It was striking to hear that the preparatory committee has also received applications from Polish and Spanish candidates. Since both of these countries are not contracting member states of the UPC Agreement, these candidates cannot be appointed as legally qualified judges of the UPC (see article 15 (2)UPCA). However, it is possible that these candidates have applied for a position as technically qualified judge. Article 15 (3) UPCA provides that technically qualified judges should have a university degree, proven expertise in a field of technology and a proven knowledge of civil law and procedure relevant in patent litigation. Consequently, the UPCA does not require a technically qualified to be a national of a contracting member state.
The Preparatory Committee has decided that it will appoint 45 legally qualified judges and 55 technically qualified judges to start with the Unified Patent Court. The salary of a first Instance judge shall be 11,000 EUR net. The Court of Appeal judges in Luxemburg shall receive a salary of 12,000 EUR net. However, at the start of the UPC all judges shall be employed at a part time basis. The Preparatory Committee also plans to constitute a reserve list of judges in order to cope with unexpected situations.
Besides the judges, the UPC shall off course also need staff. The Preparatory Committee plans to hire by itself only 7 staff members. The rest of the staff (approximately 60 people) shall be hired by the member states. Through secondment these people shall become staff of the UPC. The salaries for UPC staff shall be similar to the salaries of staff of EU institutions.
In the upcoming months, the Preparatory Committee will start with the preselection of the candidates based on their written application. This process is planned to be completed by October 2016. Afterwards, between November 2016 and January 2017 the interviews with the candidate judges shall take place.
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Re. your comment that judges from PL and ES might be eligible as technically qualified judges under Art. 15(2) of the Agreement, what is your opinion on the applicability of Article 2(1) of Annex I to the Agreement (the Statute of the Court, which is an integral part of the Agreement under Article 2(i) of the Agreement)? Art. 2(1) of Annex I states that
“Any person who is a national of a Contracting Member State and fulfils the conditions set out in Article 15 of the Agreement and in this Statute may be appointed as a judge”.
Does this not override the lack of an explicit nationality reference in Article 15(2)?
If not, and if under Article 15(2) no nationality requirements need to be met (despite the first “AND” in Art. 2(1) of Annex I), then does this open the way to the participation of technically-qualified judges from the UK after a Brexit even if the UK is otherwise outside the system (provided they have the relevant knowledge of civil law and procedure specified in Article 15(2))? For that matter, what is then to stop technically-qualified judges from the US or Australia or any other non-EU country from applying?
Sorry – for Article 15(2) in previous comment please read Article 15(3)!