Bonum Certa Men Certa

Germany Has a Major Constitutional and Reputational Crisis Due to Team UPC

All the 'lobbyism' has revealed the German republic to be little better than some 'third-world' countries or 'Trumpland'

The drill team



Summary: When BMJV is willing to go ahead with something which is unconstitutional (UPCA was already intercepted by Germany's constitutional court) it says more about BMJV than about the true prospects of the UPC, which for a variety of reasons remains dead in the water

THE MEDIA may not be saying much about it, but comments in this post (likely fluff from Bristows) include: "Why is the ministry not doing a public consultation? A public consultation was apparently denied in the past by some CDU or CSU member of the Bundestag who then became a judge on the Stjerna complaint. What a coincidence."



We wrote about this several times before.

The same person later added: "The legal arguments raised there [in Belgium] were that the EPO cannot be sued for maladministration (rule of law, art2 TFEU), the discrimination of languages (difference of treatment between french and dutch speaking companies) and equality before the law (legally binding for french speakers vs non-legally binding for dutch speakers). The language of the defendent under the UPC can also be forced, which seems to be contrary to some international treaties. Any ideas which treaties are covering this problem?"

Another person said: "If the German Government – as a major driver behind the reform – wants to stand the slightest chance of bringing the UPCA in force in unamended form, it must happen before the UK finally leaves the EU, currently envisaged for the end of this year. After this has taken place, amendment becomes plainly inevitable. They know that any UPCA revision will require highly unwelcome concessions from their side, causing them to beat this dead horse as if there was no tomorrow.

"Part of the problem is that many of the individuals involved have a personal stake in the fate of the UPCA as it stands, be it of a merely financial nature, be it career prospects, be it both. As long as the major decisions are made by the always same people, who also bear the responsibility for what has happened so far and are thus strongly biased towards the one particular outcome serving their needs, unlikely as it may be to achieve it, reason will have no place in this."

"Concerned observer" then wrote: "So let me summarise. The German government passes a law that the BVerfG voids the grounds of unconstitutionality. Subsequently, a written question is submitted to the European Commission, asking them to confirm whether CJEU case law precludes Germany from ratifying the UPC Agreement. The German government responds to all of this by presenting a draft law that the BVerfG has very clearly warned would also be unconstitutional. In other words, the German government has decided to press on despite very clear reasons to believe that the end goal would be unlawful. And all of this carried out in public, where an informed (and, in parts, highly sceptical) profession can clearly see what is going on. You have got to hand it to the persuasive powers of those pro-UPC lobbyists!"

The same person later added: "To quote the BMJV’s statement: “Es kann aber nicht so verstanden werden, dass es einen Kammerstandort in einem Nicht-Vertragsmitgliedstaat errichten beziehungsweise belassen möchte”. (“It cannot, however, be understood to mean that it wishes to establish or maintain a chamber in a non-contracting Member State”)

"This statement is clearly contrary to the position adopted by the BMJV between the Brexit vote and issuance of the UK government’s statement regarding non-participation in the UPC. However, it also makes no sense."

"Each participant to the UPC Agreement is designated as “Contracting Member State”. Thus, a NON-“Contracting Member State” is simply a State that is not party to the UPCA. The BMJV’s statement is therefore based upon the false premise that the UK is no longer a “Contracting Member State” to the UPC Agreement."

"It is so unbelievably disappointing to see such misdirection and misrepresentation emanating from a body that is supposed to be tasked with upholding the rule of law in Germany. Frankly, this has all of the makings of a major scandal."

The reply said: "Why overlook the wording “Member State”? The UK cannot be a Contracting Member State any longer for the simple reason that it is not a Member State."

MaxDrei said: "You only realise how precious was The Rule of Law after you have dumped it."

He later also said: "The irony is that the UPC as presently constituted will help non-European corporations to dominate the European market, more than ever. Just look at what has happened with the EU Registered Designs regime."

There's lots more in those 27 comments. "Comments are closed." The final comment said: "In case you hadn’t realised, most freedom of information legislation includes exemptions for information relating to … wait for it … international organisations …

"And the EPO is an international organisation.

"So the BMJV has a perfect get-out-of-jail card to prevent any embarrassing disclosures on that front."

Benjamin Henrion dumped in this meme, having written a couple of FFII pages about a looming complaint, which hours ago he told me he was seriously pursuing. He says "we will launch a crowdfunding campaign to sack the UPC in Germany" and at this moment "I am looking at which "platform" to use..." (asking for recommendations)

A meme by Benjamin Henrion A meme by Benjamin Henrion



Myles Jelf (Bristows) has just mentioned this. Why does Bristows mention something like that? One wonders....

The FFII (Foundation for a Free Information Infrastructure) has published a press release commenting on the German government’s consultation on a new draft bill to enable Germany to ratify the Unified Patent Court (UPC) Agreement (reported here). The FFII lists problems that it considers arise with the unitary patent and UPC system, and maintains that if Germany ignores those problems “there will be a second constitutional complaint filed immediately”.


Our understanding is that Stjerna would follow up as well. So the whole thing would end up being a stain on the name of BMJV. No, we don't expect BMJV to succeed, except in soiling or spoiling what's left of its reputation.

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