Three years after the last recruitment campaign for legally and technically qualified judges of the Unified Patent Court, the UPC Preparatory Committee has launched a new round of recruitment for UPC judges.
An announcement was published on the website of the Preparatory Committee (Prep Com) earlier today.
Kluwer IP Law understands the Preparatory Committee had to balance the continuing uncertainty about the future of the UP system, caused by the German complaint against the UPCA, against its ambition to allow for a fair and open process of the selection of judges.
Although there have been rumours and educated guesses that the German Federal Constitutional Court (FCC) is likely to decide about the German complaint later this year, Kluwer IP Law understands there is no link between this new recruitment campaign and (the timing of) the FCC’s decision, but it is simply because three years have passed since the original campaign and the Prep Com want to allow those who may now be able to meet the criteria to put in an application.
In the meantime, the UPC logo was also updated today, to reflect the international court and present the UPC in three languages.
The recruitment period for judges will run for eight weeks and close at midnight on 29 July 2019. Interviews will only be held upon entry into force of the Protocol on Provisional Application (PPA, which will allow some parts of the UPCA to be applied provisionally) and subsequently the Agreement on the Unified Patent Court.
This is possible if the FCC throws out the complaint against German ratification of the UPCA, Germany completes the ratification of the UPCA and PPA, and one more member state signs or gives its support to the PPA.
The original timetable for recruitment of UPC judges was to complete interviews and make appointments early in 2017, but due to the Brexit referendum and the German Constitutional complaint of 2017 the entry into force of the Unitary Patent system and the Unified Patent Court has been delayed by years, and is still uncertain.
The Prep Com hopes to recruit 50 legally qualified and 50 technically qualified UPC judges, most of them part-timers. Candidate-judges who applied in 2016 have had the opportunity to update their c.v. in recent months and will not have to apply again.
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“Although there have been rumours and educated guesses that the German Federal Constitutional Court (FCC) is likely to decide about the German complaint later this year,…” is a stance one hears regularly from the proponents of the UPC.
The “rumours and educated guesses” have even been such that a decision was expected before the end of May. We are in June and nothing happened….
In real life, one would call this wishful thinking, no more no less. Please save us from such “rumours and educated guesses”.
When looking at Art 10 of the Statute, I would however not be inclined to apply for a job as judge at the UPC.
Techrights: FINGERS OFF!!!!
The moment seems right for a defibrillation indeed.
Attentive Observer offers a reason to think twice before applying for a job as a judge in this supra-national organisation. What is “Art 10 of the Statute” though? Can he help me there?
Meanwhile, I can think of another reason.
I presume that the lobbyists for the UPC are much the same as those who lobby the members of the EPO’s Administrative Council, that Council which finds itself obliged to rubber stamp the EPO President’s deplorable trampling over the employment rights of those who work at the EPO, not least the Judges of the EPO Boards of Appeal. Which self-respecting judge, contemplating putting in for a job at the UPC, but who cherishes and pays homage to the internationally established Rule of Law, would willingly allow his or her basic human rights to be similarly trashed?
Truly, the supervision of any supra-national organisation is an increasing problem, in this aggressive, might trumps right, price of everything/value of nothing, age in which we live.
Dear Max Drei,
When using the following link, you will find the UPCA and its two annexes, whereby Annex I defines the statute of the Court. I have summarised the most important points.
https://www.unified-patent-court.org/sites/default/files/upc-agreement.pdf
In Art 1-Statute, it is defined that “This Statute contains institutional and financial arrangements for the Unified Patent Court as established under Article 1 of the UPCA. So it is necessarily part of the UPCA.
Art 3-Statute, defines the procedure of appointment of judges, whereby “Judges shall be appointed pursuant to the procedure set out in Article 16 of the UPCA.
Art 4-Statute, defines the Judges’ term of office which is 6 years, renewable.
Art 8-Statute, defines the immunity of judges, whereby according to Art 8(2), Statute, the Praesidium may waive the immunity.
According to Art 10(1) Statute, “A judge may be deprived of his or her office or of other benefits only if the Praesidium decides that that judge no longer fulfils the requisite conditions or meets the obligations arising from his or her office. The judge concerned shall be heard but shall not take part in the deliberations.”
The whole statute is silent about means of redress for a judge removed from Office. It is an internal decision of the Praesidium which cannot presently be challenged whatsoever.
It could for instance have been the Court of Appeal sitting in the composition when deciding upon a referral, cf. R 238A UPC. It could have been the CJEU, but as the CJEU should play a role as small as possible in the UPCA, this possibility was clearly not envisaged.
As for many supranational organisations, it might be the Administrative Tribunal of the International Labour Organisation in Geneva (ILO-AT). The Statute is silent on this point either. The experience shown when dealing with complaints of staff members of the EPO, it is not a court one could rely upon to see his rights guaranteed. Unless the management of a supranational organisation makes a gross mistake, the ILO-AT merely checks if the procedure has been respected, but not if the procedure is unfair or biased in favour of management.
Last but not least, Art 15(1)-Statute, defines the composition of the Praesidium: “The Praesidium shall be composed of the President of the Court of Appeal, who shall act as chairperson, the President of the Court of First Instance, two judges of the Court of Appeal elected from among their number, three judges of the Court of First Instance who are full-time judges of the Court elected from among their number, and the Registrar as a non-voting member.”
In view of the powers given to the Praesidium and of the absence of means of redress for a judge removed from its function, I would have hesitations to apply to such a post.
The same considerations are valid presently for the position of member of the Boards of Appeal of the EPO, as it is the clear aim of the new regulations to dismiss some of them after a first five year period, as it is the case for newly recruited examiners. Unless I would have a possibility to go back in my previous job, it is a delicate decision to take. This is the more so nowadays, as on top of it, former members of the Boards have to ask permission by the AC of the EPO to exercise any activity be it gainful or not.
One could expect that judges of the UPC might be later faced by a similar decision of the Administrative Committee of the UPCA.
The whole idea to have judges which can be reappointed, but where the reappointment criteria are not public, does not correspond to the idea of a truly independent judge. At the UPC it is even worse as judges can be part-time judges! See Art 3(5 and 6)-Statute. I do not know any legal system in which part-time judges are employed when it comes to dealing with multi-million assets.
i hope I could shed some light into a situation which is not so easy to grasp quickly.
Techrights: FINGERS OFF!!!
AO is presumably referring to Art 10 of the “statute of the unified patent court” which contains institutional and financial arrangements and is an Annex to the UPCA.
Art 10 of the statute sets out that a judge can be removed from office by the “Presidium”.
The Presidium “shall be composed of the President of the Court of Appeal, who shall act as
chairperson, the President of the Court of First Instance, two judges of the Court of Appeal elected
from among their number, three judges of the Court of First Instance who are full-time judges of the
Court elected from among their number, and the Registrar as a non-voting member. ”
The judges are initially appointed by the Admin council on recommendations of the Advisory council but the Presidents are then elected by the judges not the councils.