As explained in our entry UPC: four reasons why the PPA is not legally in force, published on April 21, 2022, one of the collateral damages of Brexit is that the conditions for the entry into force of the “Protocol to the Agreement on a UPC on Provisional Application” (the “PPA”), which included the ratification by the United Kingdom (the “UK”), have not been fulfilled. In response to our blog entry, from the shadow of the Preparatory Committee, it was said that there was no reason to worry. The arguments can be summarized in two points: first, even if there has been a breach of the PPA, it is doubtful which judicial authority, if any, could be called to consider such breach; and second, in any event, by the time the Unified Patent Court Agreement (the “UPCA”) enters into force, the architects of the UPC will have crossed the Rubicon and any breach of the conditions for the entry into force of the PPA will, as a result, have become a moot point.
According to Collins English Dictionary, a “wildly excessive or irrational devotion, dedication, or enthusiasm” is called fanaticism. In the context of what we are discussing here, the words “devotion” or “enthusiasm” seem to be more appropriate. This UPC devotion, relying on the aforementioned arguments, has swept under the rug the fissures not addressed in the UPC’s post-Brexit legal architecture.
From the perspective of legalism, it is a matter of concern that the failure to have addressed, even at the cost of further delays, the legal cracks left by Brexit, may be hiding a formidable timebomb lurking beneath the tip of the UPC edifice. There is a risk that the UPC, instead of crossing the Rubicon, might end up, in its current form, under the waters of the Rubicon. This is because the legal challenges affecting the PPA affect both the UPCA and the “Protocol on Privileges and Immunities of the UPC”.
Let us look at one example: for the time being, UPC enthusiasm will cause the UPC and its staff to start operations tomorrow devoid of the privileges and immunities envisaged in the “Protocol on Privileges and Immunities of the UPC”. One should clarify at this point that, according to article 8 of the UPC’s Statute, the Protocol on the privileges and immunities of the European Union (“EU”) shall apply to the judges of the UPC. For the purpose of conferring such privileges and immunities on UPC judges, the UPC architects drafted the “Protocol on Privileges and Immunities of the UPC”. According to article 18.1 of this Protocol:
“1. This Protocol shall enter into force 30 days after the date on which the last of the four State Parties – France, Germany, Luxemburg and the United Kingdom – has deposited its instrument of ratification, acceptance approval or accession.“
As readers will have noticed, article 18.1 is crystal clear in the sense that its entry into force requires the ratification of the UK. So, it is likewise very clear that if, as envisaged, the UPC starts its operations tomorrow, the UPC and its staff will be naked in terms of privileges and immunities.
This debate may well arise outside the UPC’s endogamic realm. Let’s imagine that a Portuguese tax inspector is called to interpret article 18.1 of the “Protocol on Privileges and Immunities of the UPC” in the context of a tax inspection. By having failed to heal the wounds left by Brexit, the architects of the UPC will have left the inspected person arguing with the tax authorities along the following lines: “Mr / Ms tax inspector, where in the Protocol, it says «UK», in reality you have to read «Italy»”. That can be a lot of fun.
And the great paradox of all this, is that the only one who would be able to interpret the scope of article 18.1 of the Protocol, assuming that an interpretation was required, is precisely the one that the architects of the UPC wanted to keep as far away as possible from the UPC edifice (i.e., the CJEU). This is because, as highlighted in the Recitals of the “Protocol on Privileges and Immunities of the UPC”, there is an intimate “intrinsic link” between this Protocol and EU law, to the extent that the UPC will be the only court that can benefit from EU’s Privileges and Immunities:
“RECALLING that Article 8(4) of the Statute of the Unified Patent Court covers both the privileges and immunities of the judges of the Unified Patent Court and that the application of the Protocol on the privileges and immunities of the European Union to the judges of the Unified Patent Court has been foreseen because of the intrinsic link of the latter with the European patent with unitary effect and cannot create any precedent for the application of that Protocol to other international organizations with regard to the host nation policies of the Contracting Member States.“
Clearly, only the CJEU would be able to clarify whether “UK” means “UK” or, on the contrary, it means “Italy.” The case might reach the CJEU’s desk either upon a referral from an EU national court (for example, in the context of a tax inspection procedure) or upon a referral from the UPC. In this regard, it does not seem to be very fair for the UPC architects to have left UPC judges in the very odd position of having to eventually decide, for example, in the context of a “Preliminary Objection” questioning the jurisdiction of the UPC (Rule 19.1 (a) of the Rules of Procedure), whether “UK” means “UK” or “Italy”, or whether “London” means “London” or “Milan”, or perhaps “Paris and Munich”, taking into account that, if such “Preliminary Objection” is raised, the decision would indirectly affect whether or not their own privileges and immunities have entered into force. Although the reasons that drive UPC enthusiasts are of course legitimate (avoiding further delays), applying the “acte clair doctrine” to argue that “UK” means “Italy” in a matter that affects the UPC privileges and immunities would perhaps raise some eyebrows. An interpretation from the CJEU, which is not expected to be impregnated by that legitimate UPC enthusiasm, would leave us on safer ground.
All in all, for the reasons explained in this entry, until the parties to the UPCA take appropriate action, if and when they do, UPC devotion will have left the UPC devoid of the privileges and immunities envisaged in the Protocol.
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Alea iacta est
Ready for yet another abuse of the law tomorrow at 8am when the Administrative Council will decide to amend the treaty, despite the relocation of London to Paris and Munich not written in EU law?
https://grunecker.de/fileadmin/Gruenecker/Informationen/UPC/Aufsaetze/UPC2.0-UB_FrHinkelmann09-04-2020.pdf
“Amending the UPCA by the Administrative Committee according to Art. 87 (2) UPCA “to bring it into line with […] Union law” without the necessity of a re-ratification by all member states is not an option. Stating that a section of the central division is located in London does not conflict with Union law, it is merely incorrect. [note8] Even if Art 87 (2) UPCA were applicable, it would only cover the deletion of London but not the decision about a substitute.”
The paper confirms what we all say here in this blog but still does not explain why the UPC could not have (had) a division in London (provided of course that the UK agrees to have a EU office in London).
Does that not mean that each attorney representing a defendant at the UPC needs to ask his clients if they want to additionally start national court proceedings against the UPC judges and staff to refrain from behaving as if they would be legitimate court personell and perform official court actions in the respective country? Especially including a request for a preliminary injunction to stop such behaviour immediately during these proceedings (e.g. in civil court proceedings in Germany)?
Otherwise, the attorney may itself be at risk of damage claims of his client later on if the client looses the UPC proceedings (at least for an attorney client contract under German law).
Of course, such proceedings should then be combined with national actions against the respective national authorities responsible for this mess (in Germany using the administrative tribunals to sue the Federal Republic).
The Administrative Council comprises representatives of each of the participating states. As a practical matter, those states can act through the Council, rather than negotiating a new or revised agreement.
Are you sure? What about Art 87 UPCA?
Well, I am certain that arguments based upon “a practical matter” are not really going to persuade anyone when it comes to interpreting international treaties. The fact of the matter is that neither the AC nor the collection of national delegates to the AC could be said to represent the legislator for the UPC Agreement.
It may be more CONVENIENT to fudge the issue by using a decision of the AC. But that does not make it lawful to do so.
What about the limits imposed by Art 87 UPCA?
Dear Mr Pegram,
That the Administrative Committee can amend the UPCA is not at stake. The conditions under which they can amend the UPC are very limitative.
Art 87(2) has never been thought for adapting the UPCA to the consequences of Brexit.
Dear Mr Pegram,
That the Administrative Committee can amend the UPCA is not at stake. The conditions under which they can amend the UPC are very limitative.
Art 87(2) has never been thought for adapting the UPCA to the consequences of Brexit.
The question of the legality of the entrance into force of the PPA and PPI remains valid.
As far as tax regulation is concerned, I am not sure that tax will be a problem for the judges as according to the PPI. Their revenue from the UPC will not be taken into account in order to determine the level of taxes for further income of judges. On the other hand ordinary staff of the UPC will not benefit from this advantage. Just compare Art 9(3) and 10(3) of the PPI,
The problem appears to lie more with the whole legality of the entry into force not only of the PPA or PPI, but of the UPCA as such.
With the latest decision of the presidium of the UPC on the allocation of the former duties of the former London section of the central division, to Paris and Munich, strong doubts are permitted whether such a court is a court in accordance with Art 6(1) ECHR.
Without a renegotiation of the UPCA in order to remove any direct or indirect reference to the UK, the whole construct is in clear violation of the treaty as negotiated and ratified by various parliaments.
I am referring pro memoria to the fact that the UPC has no withdrawal clause. This also raises questions about the effectiveness of the UK’s withdrawal.
I would be inclined to say that the Rubicon is much broader and deeper as many of the staunch supporters of the UPC may think.
as long as no parliament which has ratified that agreement with the term UK in it, does not declare that ratification for void (or any constitutional organ for it), why should do this a court or even the UPC?
Because the are certain rules that a court needs to apply for the interpretation of laws, contracts, treaties and the like in order to provide an answer to a legal question. For example the rule: What is the literal meaning of sentences in such kinds of texts? Using this rule only then there is no doubt that the participation of the UK is required for UPCA, PPI, and PPA to enter into force and that a branch in London as the capital of the UK is required.
Another rule would be to take into account what the intention of the parties were when the UPCA was negotiated. Even then there is no doubt that the result is the same.
It is now hard to argue that a sole act of ratification of a single treaty party can change such intention (many ratifications were made even before Brexit). The usual practice in international law is to use a reservation instead to exclude or modify the legal effect of certain provisions of a treaty. At least I am not aware of any reservation of any UPCA member state.
I have been told a long time ago, that the executive, the legislative and the judicature are three powers indépendant of each other.
With the UPC, one is allowed to wonder whether this principle of separation of power has been completely set aside by members of the judicature. One wonders why?