No “undue hectic” for German court decision on UPC because of Brexit?

Former Constitutional Court Judge on possible Background and Timing of Constitutional Complaint Against UPC-Ratification in Germany

The German news magazine for commercial law firms Juve has just published an interview with Prof. Dr. Siegfried Broß [German], a former judge at the German Federal Constitutional Court and the Patent Senate of the German Federal Supreme Court on the topic of the Verfassungsbeschwerde (“constitutional complaint”) against the German UPC-ratification. The news of the Constitutional Court’s request to stay the legislative proceedings addressed to German Federal President Steinmeier (our comment can be found here) has surprised the European patent community. Some pundits immediately highlighted that there was no decision against the UPC yet but merely an informal stay of the legislative process. As reported, the stay is not an indication on the future decision of the Federal Constitutional Court but former Judge Broß emphasizes in the interview with Juve that the Court assesses the formal admissibility of constitutional complaints very thoroughly. Even though the grounds for the Court’s request for a stay are not yet public, the fact that the Court requested a stay shows that it does not consider the complaint as manifestly unfounded.

Possible Grounds for the Verfassungsbeschwerde

Former judge Broß states that the complaint is most likely based on three main aspects – which apparently all concern the structure of the European Patent Office (EPO):

  • Broß states that the EPO Boards of Appeal are not independent from the President and the EPO administration. He calls the recent reforms mere “cosmetics“.
  • A further point would be the imbalance regarding legal measures against validity decisions. While an EP is gone with a final invalidation decision of the EPO BoA, the Opponent can – if the EP is confirmed by the EPO BoA – continue to fight the (then national part) of the patent in national nullity suits.
  • Finally, the EPO would not commit to the protection of its employee’s fundamental rights protection guaranteed by the EU Charter.

Broß claims that these “fundamental constitutional deficiencies” had been overlooked during the drafting phase of the Unitary Patent Package.

Possible Timing of the Verfassungsbeschwerde

Regarding the timing of the proceedings before the German Federal Constitutional Court, Broß states that it would be possible to decide the case within seven months but that the matter is not urgent. Rather, the Court would have to wait for the result of the Brexit negotiations until it hands down a decision. The reason for this would be that “substantial parts of the UPC will be located in the UK”. As the UK has explicitly declared that it will leave the Common Market and with the UPC being an “integral part of the Common Market”, the Constitutional Court would have to assess the post-Brexit legal landscape before rendering a decision and transmitting sovereign powers to the UPC.

Some may disagree with Broß’ notion that this is not an urgent matter. The reason for this is that the UK’s participation in the UPC system after Brexit will most likely be more difficult to achieve than before Brexit. However, the UPC will not start before the German ratification which is now on hold. If the Court indeed applies Broß’ timing, we not only can expect a substantial delay in the start of the whole UPC system, but also more difficulties for the UK’s participation.

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