As most readers will be well aware, Brexit has raised some fundamental issues for the Unified Patent Court (“UPC”) project, among which two points stand out. First, that, contrary to what it is envisaged in by Article 7.2 of the Agreement on a Unified Patent Court (“UPCA”), London will no longer be able to accommodate one of the sections of the Central Division. And second, that, for the entry into force, Article 89 of the UPCA requires thirteen instruments “[…] 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.” Taking into account that, according to the Vienna Convention on the Law of Treaties, the text of the treaty is definitively cast in stone at the time when the treaty is authenticated, Article 89 means, in plain language, that the ratification of Germany, France and the United Kingdom (“UK”) is required. This is further confirmed by the Protocol of Provisional Application, which mentions these three countries explicitly. Obviously, as a consequence of Brexit, the ratification of the UK is no longer on the table.
From a rule of law perspective, addressing these two issues would require an amendment of the UPCA. However, the architects of the UPCA seem to have decided to move the project forward de facto and continue to spend the money of European taxpayers, even if the conditions for the entry into force of the UPCA are not fulfilled. This has raised concerns among International Law experts. For example, a professor of International Law from the University of Vienna has written that:
“Ultimately, such an amendment of the treaty text seems to be the only way forward to safeguard legal certainty. Any other attempts to circumvent the unartfully constructed ratification regime under Art. 89 (1) UPCA would provide considerable arguments against the legitimacy of the Unified Patent Court itself and, as a future consequence, against the legally binding character and enforceability of its judgments. […]”
Besides this rule of law / legitimacy concerns, the “looking somewhere else” approach that the architects of the UPCA are following, also raises other fundamental issues from the perspective of democracy. For example, in some countries, such as Ireland, ratification of the UPCA will require a referendum. But, if the UPCA is not amended to heal the scars left by Brexit, on which text will Irish citizens be asked to vote? The text that was authenticated (i.e. a Central Division with Sections in Paris, Munich and London), which is the only relevant text from the perspective of International Law? The text that was authenticated with a warning that, in the end, one of the sections of the Central Division will not be in London but somewhere else? This would be astonishing because, as is well known, the two most contentious issues during the negotiation of the European patent with unitary effect / UPCA project were the language regime and the seats of the Central Division. In addition, one should not take it for granted that Irish companies will be indifferent to the prospect of having to litigate before a section of the Central Division located in London as opposed to, in, say, Milan. One would have thought that, before being asked to cast a vote, Irish citizens should have legal certainty on what they are going to vote in favour or against. And only the amendment of the UPCA could provide such legal certainty.
On another note, the suggestion that the competences of the London section could be assigned to other sections without amending the UPCA would not rank very high in the textbooks of European democracy, as it would ignore the opinion of national Parliaments and the outcome of other referenda. For example, in Denmark, citizens voted in favour of a UPCA that envisaged that the UK would be one of the participants and that one of the sections of the Central Division would be in London. For reasons that everybody knows, having the UK onboard was an attractive feature of the UPC. Trying to guess whether or not Danish citizens and / or the Parliaments of other Member States would have voted in the same direction if they had known that the UK would not be participating in the project is a voyage into the realm of speculation. The fear to ask them is a fear of democracy.
All in all, what it is clear is that, as matters stand, if and when a referendum on the UPC is organised in Ireland, Irish citizens will simply not know exactly what they have to vote on.
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Dear Mr Montana,
Before you come to the question Irish citizens might have to answer in a ratification referendum of the UPCA, you raise some highly relevant points regarding the respect of the rule of law and of the parliaments having already ratified the UPCA.
According to a staunch supporter of the UPC and published earlier on this blog under the following link:
https://patentblog.kluweriplaw.com/2022/12/05/start-unified-patent-court-postponed-due-to-it-issues/
the Administrative Committee of the UPC will amend the UPCA according to Art 87(2) at 8.00 on the day the UPC will open its doors at 9.00. The damage inflicted to the UPCA by the Brexit will therewith be healed. Life can be so simple.
I do however see some “minor” problems:
– Art 87(2) is not mentioned in the PPA, whereby Art 3(1) PPA still mentions expressis verbis the UK, and Art 7(2) UPCA still mentions expressis verbis London. Art 18(1) PPI still mentions expressis verbis the UK.
– Art 87(2) UPCA has a different function than that thought by the proponents of the UPC, but this is no more than a trivial nuisance which can easily be ignored.
– The UPC does not contain an exit clause and the VCLT has some provisions in this situation which as well cannot be ignored.
– In view of the clear wording of the PPA, PPI and of the UPCA, there is not much to interpret under the VCLT
Note: for the same staunch supporter of the UPC it is possible to ignore the VCLT, so life is indeed easy. Furthermore, by ratifying the UPCA, the parliaments have given the AC Committee of the UPC any power it needs for amending the UPCA at will.
A more detailed argumentation on those points is to be found under:
https://blog.ipappify.de/is-after-brexit-the-upc-agreement-compatible-with-eu-law/
One can turn the question around as much as one desires, the only correct way to heal the damages inflicted by the Brexit would be to renegotiate the points which are directly linked to the mention of the UK in the UPCA the PPA and the PPI.
A proper amendment of the UPCA and the corresponding protocols has never been envisaged by the proponents of the UPC, as it could have meant an end to their hopes. With all the time and money invested, there might have been no ROI. There will be clearly no ROI for the British legal profession. There will be a small ROI for some British firms of qualified representatives.
The more the time goes, the more it is manifest that the UP/UPC system does not have for aim to foster European Industry in general and European SMEs in particular, but in particular the vested interests of big internationally active litigation firms.
The only answer of the proponents of the UPC is to ignore the rule of law and the parliaments by trying to put European and national institutions in front of a fat accompli. The hope is that no court will dare say anything against the UPC, be it the CJEU or a national court. In view of all the problems which have been blatantly ignored, I do however see difficulties in enforcing decisions of the UPC.
I can thus only but agree that, should Irish voters be called to ratify the UPCA, they will be buying a pig in a poke.