06.15.20

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FFII Takes Stance Against the German Federal Ministry of Justice for Breaking the Law to Appease Team UPC

Posted in Europe, Law, Patents at 9:44 pm by Dr. Roy Schestowitz

A banana market

Summary: Like a ‘third world’ country, Germany decides to attempt something which it very well knows to be illegal as well as unconstitutional, severely harming the reputation of the EU in the process (not only Germany’s)

THIS is a quick highlight of an issue that’s not likely to be mentioned in the corporate media, only in blogs controlled by Team UPC. We’ve mentioned this before, expressing the view that a constitutional crisis is likely imminent in Germany because its “Ministry of Justice” actively works to undermine justice.

“Why they’re willing to put themselves in such an embarrassing position can only be explained by asserting that lobbyists control this government.”The following statement was issued yesterday by Benjamin Henrion, bearing the headline “Brexit: FFII rejects the proposal by the German Ministry of Justice to present the Agreement on the Unified Patent Court (UPCA) to the German Parliament for ratification” (“AETR” is brought up again):

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.

[...]

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.

This means:

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.

There’s also this new press release, “Unitary Patent: Germany is ignoring Brexit, European law, its Constitutional Court and Italians” (we covered this last week) and to quote:

The German government is pushing for a second vote on the Unitary Patent at the Bundestag. By signing an internal treaty with the UK as signatory, Germany is ignoring Brexit, and will violate EU law. The government has resorted to a very creative interpretation of the agreement in order to ignore the Brexit problem, showing its dedication to see the UPC agreement entering into force ‘whatever it takes’, at the risks of alienating Italy, with an automatic relocation of the UPC court from London to Paris instead of Milan. With the German Presidency starting in a few weeks, Germany risks to undermine [sic] the functioning the European Union.

[...]

If Germany ignores all those problems and push the ‘ignore’ button on all this issues, there will be second constitutional complaint filed immediatly. [sic]

Concerned people should trigger a debate in each national parliament and ask their politicians to request a debate in the Council of Ministers, in the European Parliament, and in each and every parliament in Europe, asking for a legal opinion of their legal service, like the European Parliament did in 2007 with the resolution on EPLA.

Germany’s government is only doing something shoddy here; it’s self-harming and it’s unlikely to let the UPCA through. Why they’re willing to put themselves in such an embarrassing position can only be explained by asserting that lobbyists control this government.

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