It is questionable whether the German constitutional complaint against ratification of the Unified Patent Court Agreement addresses fundamental breaches of the German Constitution. And even if the Federal Constitutional Court thinks this is the case, it may reject as inadmissible the complaint for a decision. Prof. Dr. Winfried Tilmann of Hogan Lovells argues this in an interview with Kluwer IP Law.

In a recent GRUR article, which discussed the merits of the constitutional complaint, you said public interest in information about the case is enormous and the uncertainty among ‘numerous inventors and companies in Europe, in the US, Japan, Korea and China, who expected the UPC to opens its doors soon’ is considerable.
Indeed, the fact that an anonymous individual – later identified as Mr. Stjerna, although he has never admitted this publicly – has been able to delay and/or block the Unitary Patent project by silently filing a complaint, the content of which was unknown, with the Bundesverfassungsgericht (FCC): it took many by surprise. Do you think more openness in the procedure before the FCC (and from parties that have been asked for comments by the FCC) would have been preferable?

’The claimant had presented his line of thinking in several articles before including hints on a possible complaint to the FCC. Therefore, his complaint did not come as a complete surprise. The FCC, in this case, has opened the proceedings by inviting comments from specialized organizations in the patent field, thereby providing at least some transparency. Public discussion on the complaint is possible.’

You expect the FCC not to admit the complaint for a decision, because of the FCC’s restrictive interpretation of Art. 38 (1), clause 1, Basic Law*, on which the complaint is based. ‘There is no right to a judicial review which goes beyond the core of democratic principles, of decisions which have been made by a democratic majority’, you pointed out (Es gibt keinen Anspruch auf eine über die Sicherung des Kerns des Demokratieprinzips hinausgehende Rechtmäßigkeitskontrolle demokratischer Mehrheitsentscheidungen). Can you explain why this may mean Stjerna’s claim and the four concerns he has regarding breaches of the Basic Law will not be admitted?

Winfried Tilmann

‘On the basis of recent decisions of the FCC I expect the complaint to be dismissed as inadmissible (unzulässig) if it does not raise an issue of a fundamental breach of the German Constitution (Basic Law, BL) in the meaning of art. 79 (3) BL, but only an issue of a normal sort of conflict with the BL. Realizing this, the complaint does argue with a fundamental breach raising objections under the principle of Rule of Law (Rechtsstaatsprinzip). However, is it true that these objections do have such fundamental character?

In my mind it is not sufficient for the complainant merely to allege that his objections do have such fundamental nature. The FCC could reject the complaint as inadmissible because the objections, evaluated objectively, are lacking such rare quality. I personally have come to the result that they do not have this quality (and that they are unfounded).

Moreover, while in the past the FCC in cases of infringement of fundamental rights has admitted complaints by citizens under art. 79 (3) BL, it has no yet decided whether and to what extent the complaint of a citizen may be brought against a fundamental infringement of the general principles of the Rule of Law. The FCC (rightly) may be hesitant to enlarge the right to sue in that direction. Also, under that aspect, the complaint may be dismissed as inadmissible.’

Many observers think the complaint will be admitted for a decision, pointing at the fact that the FCC has requested comments and views from so many parties: the German government, the Bundesländer and a series of legal associations, for instance.

‘The FCC may be tempted to write history and enlarge the right to sue for the citizen in the field of the Rule of Law. Such landmark decision, however, would probably not be made by the chamber in charge of the complaint, but by the full 2nd Senate of the FCC. Again, the reasons for the complaint do not have the fundamental character which would call for a landmark decision.’

Could you briefly discuss the four reasons brought forward for a fundamental breach of the Rule of Law?

‘First, the complaint raises the question whether Parliament should have decided by a two thirds majority. This argument may only be successful, if the FCC accepted a fundamental breach of the Rule of Law. According to a recent FCC decision the argument may not be raised regarding a normal conflict with the Constitution.

Secondly, the complaint criticizes the procedure to elect and re-elect judges, especially criticizing participation of lawyers in the deliberations and decisions of the Advisory Committee and criticizing that there is no appeal in case a judge is removed from office. An extensive research by EPLA has shown: The election and reelection procedure is squarely within the practice regarding international courts. An appeal of a judge who has been removed from office may be introduced by a simple decision of the Administrative Committee.

Thirdly, the complaint argues that the UPC Rules of Procedure have no democratic basis. However, all major rules of procedure are contained in the UPCA itself leaving only the details to the Rules of Procedure. The draft UPC Rules of Procedure were known to Parliament when deciding on the law implementing the UPCA.

Fourthly, the complaint criticizes the rules on the recovery of costs by the successful party as disadvantageous for SME. Presently such rules exist only as a draft awaiting a decision of the Administrative Committee after the beginning of the preliminary application. The draft is the result of a compromise between different national systems.

In my opinion, all four arguments are not founded and, certainly, do not raise questions of the fundamental character required by art. 79 (3) BL.’

Mr. Stjerna has also claimed that the UPCA violates Union Law. Even if his complaint will be admitted for a decision, you think these claims will neither succeed nor be referred to the CJEU. Can you explain?

‘The FCC has decided that a constitutional complaint is not admissible against a law arguing that this law infringes Union Law**. The FCC’s argument is that the TFEU has been incorporated into German law by a simple law (not by a law of constitutional character). Therefore, a new German law containing matter inconsistent with Union law would raise only a conflict with a simple law, not with the Constitution.

Moreover, the four reasons put forward by the complaint to support the assertion of a conflict with Union Law have already been decided by the CJEU in Opinion C-1/09 and in the 2nd Spanish action or are so clearly unfounded that a referral to the CJEU is not necessary. For these subsidiary arguments I refer to my article in GRUR.’ (Winfried Tilmann: Das europäische Patentsystem – Stopp vor dem Ziel? (subscription))

BVerfG 21. Juni 2016 – 2 BvR 2728/13

** BVerfG 04. November 2015 – 2 BvR 282/13


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  1. So, once it is unproblematic due to the RoP having been known to the Bundestag and therfore any objection against democratic control no reason for a complaint, and next point it is that the RoP are only provisional and will be changed by the AC anyway…
    I find this contradiction put so close (thridly and fourthly) together very… interesting, and it shows the mindset of ‘Prof.’ Tilmann….

  2. The article in GRUR is merely an adapted version of a lecture given by Mr T. at a gathering organised by the University of Düsseldorf at Schloss Mickeln on 24.10.2017.

    I have some difficulties in following the quite apodictic views of Mr T.

    First it does not appear plausible that the FCC would ask the president of the German Republic to postpone signing the ratification act if it could be dismissed as simply as is claimed. It has too far reaching consequences to request such an unusual move, without considering that prima facie that the complaint could have some merit. The same applies to the fact that the time limit for amicus curiae briefs has been extended until the end of this year. Does Mr T think that the FCC would take all those steps in order to summarily dismiss the complaint? He would be very naive, what I do not think for one second.

    I do not rule out that eventually the complaint will not be admitted, but the reasons for this would have a bit more substance than Mr T’s performance.

    The views expressed are very personal and are not supported by any precise case law of the FCC. Examples: “In my mind it is not sufficient…”, “I personally have come to the result…”, “In my opinion, all four arguments are not founded and,…” “I expect…”

    Decisions of the FCC are mentioned, but not identified. In such a situation, it is very easy to claim whatever suits your case. Examples: “On the basis of recent decisions of the FCC I expect…”,

    Mr T. quotes two decisions of the FCC, but the conclusions he draws are not quite apparent from the decisions themselves.

    When Mr T is alleging that “An extensive research by EPLA has shown….”, he probably meant EPLAW (and not the old EPLA), and there I could only find one article of Mr Pagenberg “PC Judges – How will the Judges of the UPC be chosen and appointed?”, in which nothing comes near to the allegation made. If he really meant EPLA, he will have to explain what the dead borne EPLA has in common with the UPC. Wherefrom Mr T. takes the conclusion that “The election and re-election procedure is squarely within the practice regarding international courts. An appeal of a judge who has been removed from office may be introduced by a simple decision of the Administrative Committee” remains a mystery. The last sentence is further not a model of clarity.

    Further, it is a bit easy to claim that the RoP were known by the parliament when it ratified the UPC. As far as I know we are still at the 18th draft, but a draft is not a firm version of the RoP. Th parliament might have known a draft version of the RoP, but certainly not the final one. And when one knows that the RoP have been concocted by a committee which co-opted all its members, it is hard to see that the genesis of the RoP has been a clearly democratic exercise.

    In order to dismiss the argument according to which the rules on the recovery of costs by the successful party as being disadvantageous for SME, Mr T. says that : “Presently such rules exist only as a draft awaiting a decision of the Administrative Committee after the beginning of the preliminary application. The draft is the result of a compromise between different national systems.”

    However the rules of recovery of costs are part of the RoP. Hence the RoP are still a draft. How can it then be that in one case the parliament knew the RoP as being firmly decided, and in the other case the parliament did not know, but in both cases a dismissal of the complaint should be acted by the FCC? I would expect a bit more coherence from Mr T.

    When Mr T. refers to opinion C 1/09, it is worth reminding him that when the opinion came out, Mr T. was of the opinion that the future unitary patent could only be open to member states in the EU, but after the Brexit, Mr T. was adamant that the UK could stay in the UPC post-Brexit, and that even other non-EU member states could join.

    I think that harmonisation in Europe is to be welcomed, but not the kind of harmonisation, some people want us to swallow.

    Mr T. has vested interests in the success of the UPC, and every statement he is uttering has to be seen in this context. I have therefore strong doubts about the objectivity of Mr T., the more so that he has shown in the past, that he is quite prompt in changing his mind, when his interests could suffer.

    Techrights: fingers off!!

  3. It is not worth commenting this in detail, this is Tilmann’s dreamland. T distorts the facts just as it suits him, already his allegations on the complaint’s contents are erroneous in several respects (and changing with each piece he publishes). The BverfG decisions he cites are discussed in the complaint, he simply attributes to them the meaning he needs for his fabrications. I don’t know for whom he is writing this, but the court will certainly not be impressed.

  4. Winfried,

    I did not realise that you were such an expert in constitutional law. It remains to be seen whether there is any substance to your allegations that the BVerfG will only be concerned with “fundamental” breaches of the basic law, and that the grounds raised by the complaint do not reach that threshold (despite the fact that ratification of the UPC Agreement would result in the transfer of sovereignty away from the national courts). Forgive me if I have serious doubts on this point.

    As to the oft-repeated assertion that the CJEU’s rulings on Spain’s challenges (either alone or together with Opinion C-1/09) have already dealt with all of the points relating to EU law, please stop with this nonsense! Indeed, it is not that hard to understand why that assertion cannot possibly be correct. Firstly, the challenges by Spain were against the two EU Regulations that form part of the UPP: allegations regarding non-compliance with EU law were rejected as inadmissible. Secondly, Opinion C-1/09 does not relate to the UPC Agreement at all. Thus, the CJEU has decided nothing of any substance on the issue of whether the implementation of the UPC Agreement under the national law of a Member State would lead to that Member State breaching EU law.

    If compliance of the UPC Agreement were that simple, then someone would have answered the question that I have been (repeatedly) posing for a long time now: is the UPC “an international court” or a Benelux-style “court common to the (EU) Member States”)?

    If it is the latter, then the UK clearly cannot participate post-Brexit. However, if it is the former, then the UPC will not comply with EU law (as it will be incapable of making preliminary references to the CJEU under Article 267 TFEU).

    So which of those two options would you pick, Winfried?

  5. To clarify, I meant to say that allegations regarding non-compliance OF THE UPC AGREEMENT with EU law were rejected (by the CJEU, in Spain’s action) as inadmissible.

    Of course, this does not mean that the CJEU is unable to consider the CONSEQUENCES of non-compliance of an international agreement with EU law. This is because national laws of EU Member States cannot escape the supremacy of EU law. Moreover, Article 351 TFEU compels Member States to ensure that their national laws are compatible with EU laws – regardless of the existence of contrary obligations under international agreements. (This is perhaps an over-simplification, but the point remains that Member States are forbidden from concluding international agreements that contravene their obligations under EU law.)

    We should also remember that there are other objections against the UP Regulations that could be raised but that were not raised in either of Spain’s challenges. The retroactive application of a new law of infringement springs to mind here as one effect of Regulation 1257/2012 that looks very much like it would contravene important principles of EU law (such as legal certainty and the protection of legitimate expectations). Moreover, even if the UPP comes into force, there is nothing stopping the CJEU from SUBSEQUENTLY invalidating the whole of that Regulation (or at least Article 5(3)) if it decides that there is a problem here.

    From this perspective, I would have thought that proponents of the UPC would have an interest in clearing this point up before the UPC “goes live”. Surely not even the most ardent proponents of the UPC could possibly advocate proceeding down a path that stands a high risk of creating huge legal uncertainty (perhaps even legal chaos). This is because to do so would present such proponents with an impossible conflict between their interest in benefitting financially (from the advent of the UPC, as well as from business generated by the legal uncertainty that it will bring) and the interests of their clients in maximising legal certainty (and minimising their legal bills).

    Of course, this assumes that such UPC proponents have fully informed their clients of the huge legal uncertainties that would result from the UPC “going live”. But surely no one would deliberately “hide” such valid concerns from their clients, would they?

  6. Are these thin ideas – calling them arguments would be too much – really all that one of the central UPC figureheads is able to come up with to counter the constitutional complaint, after now 6 months of in-depth assessment? No wonder that certain individuals are going into panic mode.

  7. Well, it’s a week since I posted a simple question to Prof. Dr. Tilmann and there is no response to be seen. This is perhaps no surprise. This is because Alan Johnson also has not responded to the same question (which I posed to him on 11 December) and there has been no response from ANY “UPC proponent” since I posed the very same question on 3 November (on a thread relating to comments by Mr Pors).

    So are we to assume that Messrs Tilmann, Johnson and Pors, together with all other “proponents” of the UPC who read this blog, do not have a robust answer to a question that will determine the viability of the UPC? If so, then my recommendation to those lawyers would be to abandon hope of “rescuing” the current UPC and to instead put their efforts into crafting an alternative that stands a chance of actually working (and not just for the benefit of firms of litigators).

    1. Non sequitur. Lots of other explanations are possible and even likely.


      (They do not read blogs.).or.((They do not read reader comments).and/or.(They do not bother.))

      Also: One does not feel compelled to answer ano/pseudonymous comments.
      At least the people you cite have written an article with their name on it.
      Why should they engage with people who do not?

      Best regards

      1. @Michel.

        Perhaps you are right. That is, it may well be true that I was being overly optimistic in seeking to stimulate meaningful debate in this forum.

        On the other hand, there are plenty of others who, for a long time have been posing (in the manner that you suggest) what in essence amounts to the same question. For example, just over a year ago, Professor Jaeger authored an article ( that included the following argument:
        “What that approach overlooks of course is that the CJEU’s approach to the EU system of remedies under Art. 19 TEU and Art. 267 TFEU and to safeguarding the autonomy of EU law is an effects-based one, not a formal one. In other words, a merely formal designation of a court as being a member states court which does not also change that court’s factual setup and structure will therefore not tackle concerns of a potential incompatibility with EU law. Call it BENELUX and it will be BENELUX doesn’t work”.

        So, pray tell, what excuse do Messrs Tilmann, Johnson, Pors et al. have for not responding to such arguments?

        Kluwer: it would be very interesting to hear a reasoned response from a supporter of the UPC on this point. Is this something that would be possible?

      2. Why engage, asks “Michel”? Why argue about anything? Sometimes it happens that an argument is about something important, like respect for the Rule of Law.

        One reason to get involved might be that, if you don’t dispute the issue, it might be supposed that you have no convincing (or even plausible) response to the argument. You know, like in a dispute under English law, what is not actively and positively denied is taken as ADMITTED!

        But in these times of “post truth” perhaps the rigour of an argument between experts counts for nothing any more. Perhaps the only thing that matters is what the average voter happens to “think” on any particular day. These days, however, even the deciders read the specialist Blogs. Why might they do that? Perhaps, so as to reduce the likelihood that, in the written Decisions they will soon be writing, they make fools of themselves. At least in England, one’s reputation hangs on the quality of the opinions one writes.

        The House of Windsor takes the approach that one never responds to anything written about it in the press. The more you respond, it thinks, the more you get dragged into argument, which is something the House of Windsor abhors. Perhaps the House of Bristows models itself on the House of Windsor?

    2. You seem to be referreing to your question: “is the UPC “an international court” or a Benelux-style “court common to the (EU) Member States”)?” There is an article by Prof. Ansgar Ohly and Prof. Rudolf Streinz tiitled “Can the UK stay in the UPC system after Brexit? “in GRUR Int 2017, Vol. 12, No.3, that also adresses this issue. It is freely available on the internet.

      When you start double-checking the footnotes, it becomes apparent that the article is also biased and primarily tries to push the opinion of the interested public in favoring the UK’s participation aftzer Brexit.

      But at least it has substance although it is certainly not exhaustive on the matter.

      1. Ohly is striving hard to get admitted to “the club”, also cf. his presentation “UPC and the impact of Brexit – Way forward?” given at the EPLAW-organized Venice Judges Forum in November 2016 or his Kluwer propaganda appearance in April 2017 (

        In fact, Mr Ohly has no relevant practical understanding of patent litigation, but is nonetheless pressing hard to support certain vested interests, making use of his status as a Professor in Law. What do you think is the reason for this?

      2. Thank you for that information. I had not read the article you mention but I had seen similar comments from Prof. Ohly.

        For example, in a presentation (, Prof. Ohly argues that:
        “The London Local Division and the London section of the Central division are not UK courts and hence unaffected by Art 267 TFEU losing effect”;
        “They are integral parts of the UPCA”; and
        “While the UK, by its ratification, would transfer jurisdiction to an international court, it would not have to accept the supremacy of EU law for UK courts”.

        From this, it would seem that Prof. Ohly does not answer my question at all. Instead, he merely presents a “way forward” that is premised upon a conclusion (that the UPC is an “international court”) but does not stop to consider whether that conclusion itself creates problems regarding compatibility with EU law.

        In other words, Prof. Ohly’s analysis suffers from the same fatal flaw as the Gordon and Pascoe opinion.

        To be frank, I am unimpressed by Prof. Ohly’s assertions regarding the “safeguarding” of the supremacy and autonomy of EU law:
        “These obligations arise from the UPCA (treaty obligations), not from EU law → UK would continue to be bound”.

        It does not take a genius to figure out why that assertion must be wrong. This is because it only requires one to ask a simple question, namely: what would be the CONSEQUENCE for the UK if it decided to breach the provisions of the UPCA?

        In paragraph 68 of Opinion 1/09, the CJEU emphasised that Member States of the EU have obligations under Article 4(3) TEU, including obligations established by the principle of sincere cooperation. The UK would have no such obligations post-Brexit, as it would only be bound by the provisions of an international agreement that contains no provisions relating to “enforcement”, or to “sanctions” for non-compliance. In other words, the UK would be bound only by an international agreement that is as toothless as the EPC.

        The total lack of consequences stemming from the many and varied ways in which Member States and/or the EPO have breached the provisions of the EPC (or adopted diverging interpretations of those provisions) therefore provide us with a perfect illustration of why merely signing up to “obligations” under an international agreement is not sufficient when it comes to safeguarding the supremacy and autonomy of EU law.

        As a final aside, it is a mystery to me how anyone thinks that action under Art. 22 UPCA (for an infringement of Union law by the Court of Appeal) could possibly be brought in the UK post-Brexit. Even if one accepts (for the sake of argument) that the UK might still be a “Contracting Member State” of the UPCA, it is clear that the UK national courts will, post-Brexit, have no power to refer questions to the CJEU… and so will be incapable of reaching decisions upon alleged infringements of Union law in circumstances where preliminary references to the CJEU are required.

  8. I propose we just wait and see what the German Constitutional Court says. Only their opinion matters in the end and while I do not think that the Court handles this case well (they are too slow!!!), I do believe that they will not base their final findings on comments to an article on the internet.

    1. @PP

      I think that you are missing the point.

      Firstly, the BVerfG is free to consider and evaluate any evidence or arguments that it sees fit. In doing so, my view is that quality (that is, persuasiveness from a legal perspective) ought to matter much more than manner of publication. Indeed, I do not see any need to discount comments on the internet – especially if those comments are more persuasive than the arguments presented in the main article.

      Secondly, are you really suggesting that the pending complaint at the BVerfG should hinder public debate on the viability UPC? Messrs Tilmann, Johnson and Pors have not hesitated to present their side of the argument in numerous articles and blog posts – with the clear objective of swaying opinion in their favour. Whilst I have no problem with this in principle, I must admit that I am deeply troubled by the fact that none of them is prepared to even attempt to address legitimate concerns raised by “UPC sceptics” such as myself.

      The longer that this continues, the more this places the various publications of Messrs Tilmann, Johnson and Pors in the category of “propaganda” (instead of mere “opinion”).

  9. I would also like to draw Mr Parker’s attention to the fact that for some commenter it could be very dangerous to publish any critic against the UPC under their real name as they would risk retaliation from their employer. It is just for their own safety that they have resort to pseudonyms.

    It is not because their employer is in favour of the UPC, that they have to swallow any gobbledygook uttered by persons having a direct financial interest in the UPC. There are lots of points which have emerged when people have started looking carefully at what the UPC entails. I would by far prefer to give my name, but then I know what will happen.

    Instead of publishing times and times their “thin” pro UPC papers, the Tilmann’s, Pors’, Mooney’s and consorts should once come up with reasoned arguments by which they can show that the critics are in the wrong. What they have produced up to now cannot resist a careful and thorough analysis, but represents a clear self-suggestion enterprise. It is not by repeating that everything is honky dory that they will bring forward the cause they are meant to support.

    I appreciate that Kluwer accepts critical views in the comments. At least the critics find an outlet and can manifest themselves, contrary to what Techrights says times and times. To a large extent this applies as well to IPKat.

    I think the UPC is highly dangerous for Europe contrary to all what its proponents may say. For a start, the filings from EU member states, with or without UK, barely represent a third of the filings at the EPO. How many filings stem from SMEs which are meant to be the great beneficiaries of the UPC? Nobody knows and the EPO will not publish any figures, although, in view of the reduction in filing fee, it does know them. It is not by publishing 12 allegedly successful stories of SMEs that the usefulness of the UPC for SMEs can be demonstrated.

    The big beneficiaries are the big industry and especially the non-European one. Only those branches will be able to afford the heavy lawyer bills, whether they want to sue for infringement, or file a nullity action. The procedural fees alone are dissuasive for SMEs, to the point that it has even been thought to provide a litigation insurance for them. This says it all.

    Nothing against harmonisation, I am fully in favour of it. I do however think that it will come quicker by bringing the different judges dealing with patents together, rather than setting up a monster like the UPC. After all, the EPC applies not only in the member states of the EU, but in all member states of the EPC. It is merely a question of interpretation of claims and disclosure.

    Techrights fingers off!! I do not want to see my comments used in such libels as you publish.

  10. @Amon
    Yeah, I saw that. With regard to compliance of the UPC Agreement with EU law, what particularly caught my eye were the following statements:
    “Das EPGÜ ist nunmehr auf EU-MS beschränkt”
    (“The UPCA is now limited to EU MS”)
    “Die erste Frage nach der Vereinbarkeit des EPGÜ mit Art. 267 AEUV ist vom EuGH in der Sache bereits beantwortet (acte éclairé), denn die vom EuGH konkret erhobenen Einwände gegen die erste Fassung des EPGÜ sind in der aktuellen Fassung ausgeräumt”
    (“The first question on the compatibility of the UPCA with Article 267 TFEU has already been answered by the ECJ (acte éclairé), because the concretely raised objections to the first version of the UPCA have been removed”).
    “Die Beschränkung der Teilnehmerstaaten auf EU-MS war eine Reaktion auf das Gutachten C-1/09 und diente der Sicherstellung der Zusammenarbeit der teilnehmenden EU-MS mit dem EuGH auch nach Inkrafttreten des EPGÜ. Die Verpflichtung der EU-MS, das Wirksamwerden von Art. 267 AEUV sicherzustellen, ergibt sich aus dem allgemeinen Unionsrecht und begründet kein besonderes Näheverhältnis des EPGÜ zum Recht der Union”
    (“The restriction of participating States to EU MS was in response to Opinion C-1/09 and served to ensure cooperation between the participating EU MS and the ECJ even after the UPCA entered into force. The obligation of the EU MS to ensure that Article 267 TFEU comes into effect stems from general EU law and does not establish any particular relationship between the UPCA and the law of the Union”).
    “Dass das EPG nach dem EPGÜ die Verpflichtungen der teilnehmenden EU-MS aus dem Unionsrecht wahrnehmen muss, ergibt sich aus der Verpflichtung dieser EU-MS, Unionsrecht zu beachten, und begründet ebenfalls kein besonderes Näheverhältnis des EPGÜ zum Recht der Union”
    (“The fact that under the UPCA the UPC has to fulfil the obligations of the participating EU MS under EU law results from the obligation of these EU MS to comply with EU law and likewise does not establish any particular relationship between the EPC and the law of the Union”).

    There were also some references to the importance of Articles 21 to 23 UPCA.

    The arguments advanced can therefore be summarised as “Please just look at the wording of the UPCA and do not under any circumstances consider the effects of Brexit”.

    In other words, the Deutschen Anwaltvereins appears to be of the view that the UPC is a court common to the participating EU Member States … but have carefully avoided commenting upon the logical conclusion of that position (ie that Brexit will destroy the supposed compliance with EU law).

    So, on this point at least, the arguments appear to me to amount to nothing more that smoke and mirrors, together with desperate attempts to gloss over gaping holes in the legal arguments. I can only hope that the BVerfG reaches the same conclusion!

  11. Thank you, Concerned Observer.
    Btw, do you have an explanation how the complaint can be inadmissible as claimed by Deutsche Anwaltverein if, for suspending the ratification procedure, the BVerfG requires the admissibility of the underlying complaint? So has the court taken that far-reaching action without considering admissbility? Highly unlikely, IMHO.

    1. The court has not formally decided to stop the ratification.
      They have (politely) asked the president of the German federation to not sign, as the impact of signing and subsequent declaration of invalidity of the UPCA would be inforseeable…

      What the federal constitutional court would have done if the federal president would have ignored the request is a question nobody can answer, as no such request has been ignored so far.

      1. Sorry to say that, Francesca, but you obviously don’t understand too much of what you’re talking about. Please check your facts and study the underyling legal situation. We can discuss once you’re up to speed on both.

        The Federal President would NEVER ignore such request.

  12. @Nike

    I do not have an explanation for that, no.

    BTW, it appears to me that the arguments for non-admissibility contain some interesting concessions regarding imperfections of the UPCA (vis-à-vis the legal standards demanded by the German Basic Law). This suggests that the arguments of the Deutschen Anwaltvereins may well rebound on them if the complaint is deemed admissible.

    I am no expert in German constitutional law, but this does not strike me as the most sensible strategy for the Deutschen Anwaltvereins. Part of the reason for this is that ratification of the UPCA would undoubtedly constitute a transfer of sovereignty to an international organisation. Whilst imperfections in the laws underpinning international organisations (such as the EPO) has not yet given the BVerfG serious cause for concern, it is perfectly possible that this will change. Indeed, I understand that the BVerfG has admitted (and will deliver full judgements on) no fewer than 4 complaints relating to the EPO. With all that has gone on at the EPO recently (including multiple instances in which the President and/or the AC have clearly contravened provisions of the EPC), is there anyone out there who is willing to wager that the BVerfG’s rulings will all be favourable to the EPO?

    Returning to the topic of compatibility with EU law, I think that I have identified the LEAST convincing argument made by the Deutschen Anwaltvereins, namely:
    “The first question on the compatibility of the UPCA with Article 267 TFEU has already been answered by the ECJ (acte éclairé), because the concretely raised objections to the first version of the UPCA have been removed”.

    This argument is akin to an applicant asserting that there is no need for a patent office to re-examine an amended claim set … because the applicant can assure the patent office that the amendments deal with all prior objections. It does not take a genius to figure out why the patent office should not assume that all prior objections have indeed been overcome (or that the amendments do not introduce completely new grounds for objection). Therefore, as no patent office would ever accept such an implausible assertion, I cannot understand why the Deutschen Anwaltvereins would even consider asking the BVerfG to do so.

    Then again, as the Deutschen Anwaltvereins’ assertions of acte éclairé also rely upon a passage in an AG Opinion (which passage was NOT repeated in the ECJ’s judgement), it would seem that the arguments are not intended to be convincing. Instead, the aim appears to be provide an excuse (no matter how flimsy) for concluding that a reference to the ECJ is unnecessary. It remains to be seen whether the BVerfG is willing to play along with this tactic…

    One more thing before I sign off. Am I to conclude that all members of the Deutschen Anwaltvereins just so happen to agree with PRECISELY the line of argumentation previously outlined by Prof. Tilmann?

  13. Let me ask a provocative question back: What do you think is the reason why Mr Tilmann got his article published in December 2017? Just by coincidence, he happens to be one of the rapporteurs who have put together this piece for Deutsche Anwaltverein.

    The stakeholders involved rely strongly on the assumption that the court will be reluctant to interfere with the UPCA if only they keep their ranks closed and unanimously deny the complaint any merits. We will see whether this will work.

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