Warning: This document is work in progress. This will be the FFII’s answer to the 3 weeks ‘private’ consultation organised by the German Ministry of Justice, which is running till the 2nd of July (date to be clarified). Since the procedures around this ‘private’ consultation are not very clear, we call for an ‘open’ consultation with a proper procedure. The UPC is an unheard new architecture in the history of the contruction of the European Union, which has extreme complexity due to the outsourcing of civil disputes to an international tribunal. Public consultations on the UPC were denied in the past by the new Chairman of the German Federal Constitutional Court, Mr Harbart, who is a former lawyer and Member of the Parliament for the CDU. If you want to contribute, you can send your remarks/improvements by email to zoobab at gmail.com
UPDATE: Dr Ingve Björn Stjerna has published the letter from the german Ministry of Justice, deadline for comments is the Friday 3rd July (scroll the the bottom of the page “Update (16 and 17/06/2020)”).
UPDATE2: Guidelines for submissions: “Please note that the comments you submit will be published on our website. This also includes names and others personal data contained in the document. We ask for this Submission of the opinion in a PDF format. Unless you are publishing we do not agree to personal data, we ask you to remove this in advance from the remove document. If you object to the publication on the Internet as a whole, it will be mentioned on the website of the BMJV only notes that a contribution has been submitted and who wrote this.”
About FFII eV
We welcome this semi-public consultation on the Unitary Patent Court and its Court. Although we would have preferred a proper public consultation, this is an opportunity to put on the record the different problems with the Unitary Patent and its Court.
Problem 1: Software Patents validated via the jurisprudence of a central patent court
Our companies and supporters are concerned about the extension of patent law to the software sector, also called software patents. Patents are not adapted to the software sector, for obvious reasons.
We started our interest in the development of a pan-european patent court system in July 2005, when the large software multinationals called to drop the software patent directive and pushed for a pan-european patent court instead. Less than 6 months after the rejection of the directive, in 2006, the European Commission restarted a public consultation on a pan-european court system.
Problem 2: Lack of Economic impact analysis
Problem 3: Brexit
The German Federal Constitutional Court (13 February 2020) has confirmed that the UPC Agreement is open only to EU Member States, as mentioned in the press release of the Court:
The Agreement is open exclusively to EU Member States.
The United Kingdom has ratified the UPC Agreement, and unless a formal request is sent by the UK government to the Council of the EU expressing its decision to undo the earlier ratification of the UK of the UPCA, the UK must still be considered a Contracting Party to the UPCA.
This means that the German Federal Ministry of Justice is proposing to the German Parliament, the ratification of an agreement with a “third state” of the European Union. In view of case law “AETR”, 22/70 of the Court of Justice, EU Member States may not enter into obligations with “third states” which affect European Union rules.
Each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form they may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules or alter their scope.“
Patent litigation is clearly within the legislative competences of the European Union (Brussels I regulation, IPRED directive), and therefore EU Member States may not enter into agreements with “third states” without involving the EU Institutions.
In view of Article 31 of the Vienna Convention (1969) on the law of the Treaties, a Treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
This means that the UPCA must be read as it is written, and a likely witdrawal of the UK can not result in an interpretation of how UPCA may be interpreted if the UK would no longer be there.
1) that the Federal Republic of Germany may not (in view of case law “AETR” of the CJEU) ratify the UPCA, as long as the status of the UK, as ratifying party of UPCA, has not been clarified.
2) In view of Article 31 of the Vienna Convention on the law of the Treaties, the German Government may not present UPCA for ratification to the German Parliament with an interpretation of how the UPCA would be interpreted if the UK would no longer be party to it.
Presenting a Treaty for ratification to the German Parliament with an interpretation of how the UPCA will be interpreted if the UK is no longer participating, is clearly violating the spirit of the Vienna Convention on the Law of the Treaties.
In such a situation where there is doubt on the content of a draft Treaty in view of the upcoming departure of one of its Contracting Parties, the ratification of the Treaty should be suspended, and the Treaty needs to be renegotiated. That is the correct procedure under the Vienna Convention on the law of the Treaties.
There is an alternative solution:
As the UPCA is closely linked to the European Union (UPCA is open only to Member States of the EU), the German Government is, in view of the situation resulting from BREXIT, obliged to present the issue of the future of UPCA to the Council of the EU.
The German Government is, especially in view of Article 4(3) of the Treaty on European Union and its upcoming Presidency of the EU, obliged to present the draft agreement on the Unified Patent Court to the Council of the European Union. Not doing so, would undermine the competences of the European Union, especially in view of Article 4(3) TEU and case law 22/70 of the Court of Justice.
3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.Treaty of Functioning of the European Union (TFEU) Article 4(3)
We hope that the upcoming German Presidency of the European Union will take this issue seriously, as this might create tensions with other Member States, such as Italy.
In addition, the Common Rules of Procedure of the German Federal Ministries (Gemeinsame Geschäftsordnung der Bundesministerien), section 43 (1) number 8, calls for the presentation of the connections to and the compatibility of German legislative initiatives with the EU law, which is absent from the present draft law proposal.
Section 43 justification
(1) The reasoning must show:
8. References to and compatibility with the law of the European Union,
10. whether the bill is compatible with international treaties that Germany has concluded,Gemeinsame Geschäftsordnung der Bundesministerien
We also note the absence of any analysis in this draft law proposal regarding the compatibility of the UPC with other international treaties that Germany has concluded, such as the European Convention on Human Rights (ECHR). FFII has raised in another constitutional complaint in Belgium through its sister association ESOMA that the UPC’s Rules of Procedure were made in violation of the caselaw of the ECHR art6 “right to a fair trial”, which reads:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.Article 6 of the European Convention on Human Rights https://en.wikipedia.org/wiki/Article_6_of_the_European_Convention_on_Human_Rights
If Germany is misled by the patent industry and ratifies the UPCA, this would be a serious breach of procedure under EU law by the German government, and a new constitutional complaint will be launched. Germany would also expose itself to litigation from the EU institutions and other Member States.
The Withdrawal Agreement here
- Press Release of the German Federal Constitutional Court (GFCC) on the Unitary Patent decision of 20th March 2020: Act of Approval to the Agreement on a Unified Patent Court is void https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-020.html
- Germany can no longer ratify the Unitary Patent due to Brexit and the established AETR case-law, says FFII https://ffii.org/germany-can-no-longer-ratify-the-unitary-patent-due-to-brexit-and-the-established-aetr-case-law-says-ffii/
- Kluwer Patent Blog: New draft bill presented in Germany for ratification of the UPCA http://patentblog.kluweriplaw.com/2020/06/12/new-draft-bill-presented-in-germany-for-ratification-of-the-upca
- ESOMA: Unitary Patent challenged at the Belgian Constitutional Court http://esoma.wikidot.com/forum/t-1162188/unitary-patent-challenged-at-the-belgian-constitutional-cour
Footnote: “Als Reaktion auf das Gutachten des Gerichtshofs wurde das Patentpaket dahingehend geändert, dass Vertragsstaaten des EPGÜ nur noch Mitgliedstaaten der Europäischen Union werden sollten, nicht hingegen die Europäische Union selbst oder sonstige Vertragsstaaten des EPÜ.”