"There's a widespread sentiment that the timing suggests reasons for rejection that aren't based on merit but based on fear."Today's subject came to my attention by a tweet from a colleague of Max Walters, who had published this piece in an EPO propaganda rag. It was a very immature non-response to promote his colleague's article (I did not even speak to him, he just keeps speaking to me) and we've since then included early coverage in the latest batch of Daily Links. All the media coverage I've seen about UPC so far isn't normal media but Team UPC-captured 'media' (propaganda apparatuses) funded by UPC wannabes to mislead the public, lawmakers etc. The one exception was Reuters, but it didn't even know what UPC is called (error in the headline).
The complainant wrote: "With decision of 23/06/2021 (German language), the BVerfG has rejected the request to oblige the involved institutions by an interim order (“einstweilige Anordnung”) to desist from completing the UPCA ratification process until a decision in the proceedings on the merits (docket no. 2 BvR 2217/20) (also cf. the court’s press statement no. 57/2021 of 09/07/2021)." (And there is a lot more further up in that page)
Somehow that has become a semi-official declaration that the UPC is coming, but what might be coming is ratification by Germany, which is not the same thing. To name a few lingering issues, there's the EBA catastrophe (kangaroo courts), the UK left the EU, there were successful constitutional challenges outside Germany, and several large countries refuse to participate.
One person said, "complaints dismissed, UPC will go through. Check the website of Karlsruhe. Bad news."
It is indeed bad news, but the timing suggests that this becomes a political issue, potentially connected to the ECB scandal which we spoke about the other day. In the words of an early comment:
I got the impression that the surprising rush of the FCC is caused by the recent decision of the EU Commission to sue Germany regarding the ECB decision of the FCC last year, which dealt with the primacy of the German constitution over EU law. See e.g.: https://www.dw.com/en/brussels-prepares-case-against-germany-over-ecb-ruling/a-57819671
In this new decision the FCC confirms again the primacy of the German constitution at the core of the decision. It reads like a message to the EU commission regarding their plans.
Whatever happened to the complaints filed in respect of the EPO Boards of Appeal? The FCC appears to believe that the passing of more than a decade since the filing of the first of those complaints – as well as their potential relevance to the viability of the UPC system – is no reason to decide them first.
The FCC’s commentary on Art 20 UPCA is also somewhat surprising. Can anyone explain to me how, in practice, the UPC, which will have jurisdiction for patent disputes covering Germany, will ensure that there is no automatic supremacy of EU law over Germany’s Basic law? The maintenance of the status quo, which is assumed by the FCC, appears to demand that the UPC applies the Basic Law in cases where that conflicts with EU law … though I have no idea by which mechanism, or according to which competence, the UPC might do this.
The FCC does not require the UPC to apply German law, not even the Basic Law. The assumption is that the UPCA is compliant with the Basic Law as the complainants were unable to prove otherwise and there are no other obvious conflicts for the FCC.
But this does not preclude further constitutional complaints against UPCA or against individual acts of the UPC in the future as the primacy of the constitution is not altered by Art. 20 UPCA because the FCC does not consider Art. 20 UPCA to be an amendment of the constitution itself. But the EPO complaints are a very good example what this is really worth in practice.
Still, I think that this FCC decision can only be understood in the context of the threat of the EU Commission to sue Germany at the CJEU regarding the primacy of EU law vs. the German constitution. “The FCC tries to ensure peace.”
In connection with the 2017 complaint, the FCC appeared to acknowledge that there was evidence that “the imposition of unconditional primacy of Union law in Article 20 UPCA is contrary to Article 20 (1) and (2) in conjunction with Article 79(2), sentence 3 of the Basic Law”.
The ratification law transfers sovereignty for patent disputes relating to Germany from the German courts to the UPC. As you have observed, the German courts would be obliged to ensure the primacy of the German constitution over EU law. However, the UPC would not (and could not) do the same. So the transfer of sovereignty to the UPC would remove the only “safety net” that guards against an unconditional primacy of Union law.
In this context, it is clear that, with regard to patent disputes relating to Germany, the practical effect of Article 20 UPCA is not just to reaffirm the UPCA’s adherence to EU law but also to remove a key safeguard provided by the Basic Law.
This is hardly maintenance of the status quo. The FCC could see this in 2020. The FCC’s “assumption” regarding Article 20 UPCA is therefore not only self-evidently false but it also flies in the face of their own prior comments. It makes you wonder what happened between 2020 and 2021 for the FCC to have such a change of heart.