EU Patent Reform: First constitutional complaint against UPCA ratification in Germany (Published on 14/06/2017, latest update on 01/02/2022)
As reported in the press recently, a constitutional complaint has been filed against the German ratification of the UPCA after the conclusion of the Parliamentary proceedings on 31/03/2017, concomitantly requesting the court to oblige the involved institutions by an interim order (“einstweilige Anordnung”) to desist from completing the ratification process until a decision in the proceedings on the merits, i. e. in the constitutional complaint proceedings.
At the request of the Federal Constitutional Court, the Office of the Federal President agreed on 04/04/2017 to suspend the ratification process until a decision on the merits has been made. This is a common practice of the court with regard to requests for interim measures against the execution of legislative acts which it deems to be not obviously unfounded. With such suspension of the ratification process, a decision of the request for an interim order is usually no longer necessary and the court will advance to the material assessment of the case.
As a next step, it will take a decision on whether it wishes to adopt the constitutional complaint for a decision. The timeline required for this varies, it usually takes several months.
The Federal Constitutional Court has most recently sent the constitutional complaint to several parties to the proceedings and to third parties for their comments. This has no implications for whether the constitutional complaint will be accepted for a decision or for its prospects.
The Federal Constitutional Court has meanwhile invited further third parties to submit their comments on the constitutional complaint. In total, the number of invitations to comment is presently 27.
Update (26/10/2017, updated on 12/01/2018):
Most recently, individuals not involved in the proceedings have published detailed information from the complaint brief without the consent of the respective right owner. The court has been informed about this, the lawfulness of the incident is under review by different authorities.
On its website, the Federal Constitutional Court provides detailed information on the proceedings for which it has competence and on the deliberation process. The explanations on the constitutional complaint proceedings can he found here, those on measures of preliminary protection of rights here. The deliberation process is set out in more detail here.
In August 2017, the FCC had served the constitutional complaint on both chambers of Parliament (Bundestag and Bundesrat), the Federal Chancellery, the Federal Ministry of Justice and Consumer Protection and all State governments, giving them the opportunity to comment until 31/12/2017 – until 31/01/2018 in case of the Bundestag – (sec.s 23(2), 94(4), 77 of the Federal Constitutional Court Act [BVerfGG]).
Within the same time limit, the Presidents of the Federal Bar Association (BRAK) and of the German Association of Lawyers (DAV) and – in reply to their prior written request – the Presidents of the European Patent Lawyers Association (EPLAW), of the European Patent Office (EPO), of the German Association for Industrial Property and Copyright (GRUR), of the European Patent Litigators Association (EPLIT) and of the Confederation of German Industry (BDI) were allowed to comment pursuant to sec. 27a BVerfGG.
A statement was filed by the Bundestag and the Federal government as well as by BRAK, DAV, EPLAW, EPA, GRUR and EPLIT.
In its judgment of 06/03/2018 in matter C-284/16 (Slovak Republic v Achmea BV), the CJEU (Grand Chamber) confirms its requirements as to the protection of the principle of Union law autonomy in relation to international courts, cf. here.
In a decision of 22/03/2018, the 2nd Senate of the BVerfG has elaborated on the constitutional requirements of judicial independence (docket no. 2 BvR 780/16). The decision can be accessed here (German language).
On 30/11/2018, Prof. Dr Stephan Harbarth, a Member of the German Parliament (“Bundestag”) for the Conservative party (“CDU”) was appointed judge at the Federal Constitutional Court (“BVerfG”), where he is since chairing the First Senate (cf. the press release of the BVerfG of 30/11/2018 [German language]). Previously, the majority of the German Bundestag had approved his appointment on 22/11/2018 (see Plenary Protocol 19/65, p. 7447, 7454 [German language]). He was also elected as Vice-President of the BVerfG by the Federal Council (“Bundesrat”) on 23/11/2018 unanimously (see Plenary Protocol 972 [German language], p. 411), which designates him to succeed the current President of the BVerfG after the expiry of the latter’s term of office in two years’ time.
This matter is also of interest for constitutional complaint proceedings 2 BvR 739/17 on the ratification of the Agreement on a Unified Patent Court (“UPCA”) in Germany.
Mr Harbarth, Member of the Bundestag since 2009, was a deputy chairman of the Conservative parliamentary group (“CDU/CSU”), the largest in the German Bundestag, and was also practicing as a lawyer. In the latter function, he was managing partner of the law firm SZA Schilling Zutt & Anschütz and was among the Members of Parliament with the highest additional income. In view of his election as a BVerfG judge and the resulting statutory incompatibilities (cf. sec. 3(4)1 Act on the BVerfG [“BVerfGG”]), he has meanwhile resigned from his seat in the Bundestag and suspended his admission to the bar; he has also departed from the aforementioned law firm.
In the past, Mr Harbarth has strongly supported the European patent reform. In a speech given in the context of the first Parliamentary reading on the ratification of the UPCA in the German Bundestag on 23/06/2016, he stated (Plenary Protocol 18/179, p. 17755 ff. [German language], cf. the English office translation of the speech):
“The present European patent reform is a major breakthrough; it will make a lasting positive difference to the patent system in Europe. Access to unitary patent protection within the EU will not only strengthen the protection of inventions, but it will also create a significantly improved framework for an innovative industry and an integrated European internal market.
The present reform (…) [leads] to a welcome unitary European patent protection which, in the long run, is meant to replace the nation state patchwork solutions.”
At the 107th meeting of the Committee on Legal Affairs and Consumer Protection on 06/07/2016, as the then chairman of the Committee members from his parliamentary group (“Obmann”, cf. the list of members of 07/04/2016 [German language]), he successfully demanded that the discussion and vote on holding a public consultation on the legislative proposals on the ratification of the European patent reform scheduled for that day be removed from the agenda (cf. excerpts from the agenda and minutes of this meeting). A public consultation was not brought up for discussion again afterwards.
In a different matter, Mr Harbarth has been criticized for an alleged conflict of interest (see “SZA-Anwalt Harbarth im Interessenskonflikt?” [“SZA lawyer Harbarth in a conflict of interest?”], on lto.de of 27/11/2015 [German language]; “Doppelrolle in der VW-Affäre” [“Dual role in the Volkswagen affair”], stuttgarter-zeitung.de of 21/02/2016 [German language]).
The Federal Law Society (Bundesrechtsanwaltskammer, “BRAK”) and the German Bar Association (Deutscher Anwaltverein, “DAV”), both of which strongly support the European patent reform and consider the constitutional complaint to be inadmissible and/or unfounded, applauded Mr Harbarth’s appointment (cf. DAV press release of 22/11/2018, [German language]). He is the first judge at the BVerfG coming from the legal profession since 2005.
Will Mr Harbarth’s commitment to the European patent reform be continued at the BVerfG?
In its Opinion 1/17 of 30/04/2019 on the compatibility with Union law of the planned Investor-State Dispute Settlement Mechanism (“ISDS mechanism”) in the Comprehensive Economic and Trade Agreement (“CETA”), the CJEU (Full Court) once again confirms its requirements as to the protection of the principle of Union law autonomy in relation to international courts, cf. here.
Update (29/11/2019; 16/01/2020):
As a sidenote to recent events, between 24 and 26/11/2019 a delegation of the German Federal Constitutional Court visited the UK Supreme Court, discussing, inter alia, “the justiciability of issues relating to the separation of powers” (cf. the official press statement of 27/11/2019).
In the constitutional complaint proceedings before the Federal Constitutional Court (BVerfG) with docket no.s 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 786/15, 2 BvR 756/16 and 2 BvR 561/18, which deal with the compatibility of acts of the European Patent Office with the German Grundgesetz, the German Bundestag decided in its 115th session on 26/09/2019 to appoint a representative and to submit comments (cf. the Plenary Protocol of 26/09/2019, section 14033 C [German language] and the resolution of the Committee on Legal Affairs and Consumer Protection of 25/09/2019 [German language]).
According to the usual procedures, this suggests that the BVerfG has shortly before granted the German Bundestag, which, amongst others, must be mandatorily involved pursuant to sec.s 23(2), 94(4), 77 of the Federal Constitutional Court Act (BVerfGG), an opportunity to submit comments in these proceedings and has set a respective deadline.
In the constitutional complaint proceedings on the UPCA, the same procedure took place already at the end of 2017 (cf. the Plenary Protocol of 13/12/2017, section 361 C [German language] and the request by the CDU/CSU Parliamentary group to file such comments [German language]); also cf. the above update of 28/02/2018.
With decision of 13/02/2020 (German language), the BVerfG allowed the constitutional complaint, declaring invalid the Act on the Agreement of 19/02/2013 on a Unified Patent Court (also cf. the court’s press statement no. 20/2020 of 20/03/2020).
With an unanimous Senate decision of 01/12/2020 (German language), in which no reasons were provided, the Federal Constitutional Court (“BVerfG”) has determined the value in dispute for constitutional complaint proceedings 2 BvR 739/17. This decision is a basic prerequisite for the reimbursement of costs, at the BVerfG it is only made on application. The decision took the court more than eight months instead of the four weeks it usually requires.
For the proceedings on the merits, the BVerfG has set an amount of EUR 250,000.00, which is considerably lower than the EUR 1,000,000.00 usually determined in constitutional complaint proceedings with a similar subject matter. On this basis, the complainant’s cost reimbursement claim against the Federal Republic of Germany for the proceedings on the merits amounts to EUR 3,604.80 plus expenses.
In the same decision, the BVerfG also ruled, as requested, that the Federal Republic of Germany is obliged to cost reimbursement also in the proceedings for the grant of an interim order. The value in dispute was set here – in accordance with the usual approach – at 50 percent of the value of the proceedings on the merits, i.e. EUR 125,000.00. On this basis, the complainant’s cost reimbursement claim against the Federal Republic of Germany in the proceedings for the grant of an interim order amounts to EUR 2,540.80 plus expenses.
Thus, the complainant’s overall cost reimbursement claim amounts to EUR 6.145,60 plus expenses.
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As reported previously, it took the BVerfG roughly nine months to simply determine the value in dispute of case 2 BvR 739/17 which finally happened in December 2020. The value was set at 25 percent of that determined by the court in similar cases, without reasons being given.
The requests for costs reimbursement filed on this basis are now pending with the BVerfG since roughly seven months. At the end of May 2021, the BVerfG had not even sent the reimbursement requests to the German government for comments which is a necessary condition before a cost order can be issued.
Cost reimbursement proceedings before German courts usually take two to three months, before the BVerfG sometimes twice as long. In case 2 BvR 739/17 we are now at 15 months, with no end in sight; no cost reimbursement was allowed to take place yet.
What do you think is the reason for this conduct of the so-called “citizens’ court’s” Second Senate, the new Presiding judge of which was part of the minority of three judges voting to reject the constitutional complaint?
The reimbursement of costs in proceedings 2 BvR 739/17 has still not been completed even roughly 18 months after the relevant decision was issued, cost reimbursement orders have still not been issued.
On 29/07/2021, the BVerfG indicated that it now had forwarded the cost reimbursement applications to the respondent for comment – some eight months after they were first submitted.
It remains to be seen whether it was ultimately the proceedings that took longer or the reimbursement of costs.
Even roughly two years after the substantive decision was issued, the BVerfG continues to block the reimbursement of costs awarded to the complainant. After it had already taken around eight months to determine the value in dispute, the requests for costs reimbursement have been pending there for more than a year. These were not forwarded to the German government until roughly eight months later at the end of July 2021, and the government submitted its statement in mid-August 2021. Since then, the procedure is dormant again.
As a consequence, proceedings which usually take a county court no more than two to three months to complete are now pending at the BVerfG for close to two years, with no end in sight.
Lived legal practice at the highest German court in the year 2022.
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