EU Patent Reform: The reimbursement of costs in constitutional complaint proceedings 2 BvR 739/17 (UPCA I) – an almost never-ending story (Published on 21/11/2023, latest update on 15/12/2023)

I. Constitutional complaint proceedings 2 BvR 739/17 and the obligation to reimburse costs

As is known, the German Federal Constitutional Court (“BVerfG”) upheld the constitutional complaint of 31/03/2017 in its decision of 13/02/2020 and declared the first German ratification of the Agreement on a Unified Patent Court (“UPCA”) null and void. In doing so, it obliged the Federal Republic of Germany to reimburse the complainant for the necessary expenses both in the constitutional complaint proceedings and in the proceedings for an interim injunction.

As reported (see the updates from 12/02/2021), the court had set the value in dispute relevant for the calculation of fees at an unusually low level, namely EUR 250,000.00 in the main proceedings and EUR 125,000.00 in the proceedings for an interim injunction. The court had already needed around eight months to make this determination – which, unlike in other cases, is not made ex officio in constitutional complaint proceedings, but requires an application by the costs creditor. Based on these values in dispute the complainant’s total claim for reimbursement of costs amounted to EUR 6,145.60 plus expenses. This is a comparatively low amount for proceedings lasting around three years in a matter – not least according to the Federal government’s constant statements – of central importance for the European economy with a file volume of several thousand pages.

II. The procedure for determining costs

As an explanation for non-lawyer readers, it should be noted that in order to obtain reimbursement of this amount, a so-called application for the determination of costs must first be submitted to the court and a corresponding order for the determination of costs issued by it. As long as this order has not been issued, the cost debtor has no enforceable obligation to pay. Normally, a corresponding court order for the determination of costs is issued after hearing the debtor within four to six weeks of the application being submitted. However, this was not the case at the BVerfG in proceedings 2 BvR 739/17.

III. The determination of costs in proceedings 2 BvR 739/17

The corresponding applications for the determination of costs were submitted to the BVerfG at the end of November 2020.

Since the BVerfG did not send its files and, according to its notification at the beginning of November 2017, the court file was approximately twice the size of the documents submitted by the complainant, without being prepared to provide any further information, the latter had traveled to Karlsruhe for the purpose of inspecting the files. A further trip there for the purpose of inspecting the files took place after, at the beginning of February 2018, he had neither received the third-party submissions – which were due on 31/12/2017 –- nor was the court willing to provide information by telephone about the number of submissions it had received. The reimbursement of the travel expenses incurred in each case was requested in the application for the determination of costs.

The Federal German Government, represented by the Federal Ministry of Justice and Consumer Protection, recognised the amounts claimed almost in full, only the reimbursement of travel and copying costs of around EUR 900.00 was disputed.

Nevertheless, nothing happened for several years. Despite several status enquiries and complaints of delay, the application remained unprocessed. In August 2022, the Federal German Government even agreed to the voluntary payment of the undisputed amount and ordered it to be paid.

The judicial officer at the BVerfG only issued the order for the determination of costs on 10/05/2023, roughly two and a half years after the respective application had been filed. Remarkably, this order refused to reimburse any expenses beyond the lump sum of EUR 20.00, the justification is as remarkable as it is worth reading.

IV. The partial annulment of the order for the determination of costs by Senate decision of 28/09/2023

Upon the complainant’s immediate appeal, the court revoked the order for the determination of costs insofar as it rejected the reimbursability of the travel expenses and referred the matter back to the judicial officer for a new decision. The decision’s fundamental importance is reflected in the fact that it was issued by all eight judges of the Second Senate.

The judicial officer would now actually only have to declare the reimbursability of the aforementioned travel expenses confirmed as reimbursable by the Second Senate; however, she has not yet done so. Accordingly, the reimbursement of costs in proceedings 2 BvR 739/17 has not been completed even more than three years after the end of the corresponding constitutional complaint proceedings. This means that the cost assessment proceedings have now lasted longer than the constitutional complaint proceedings themselves.

V. Further request from the judicial officer to the BMJ in October 2023

Most recently, the complainant was forwarded a letter of the judicial officer from October 2023 in which she informs the Federal Ministry of Justice (“BMJ”), which represents the Federal government in the present case, of her intention to determine the further costs found to be recoverable by the BVerfG in its appeal decision, and giving the Ministry the opportunity to comment.

This in itself is a somewhat strange procedure, considering that the court has confirmed the eligibility for reimbursement while the amounts in question are apparent from the respective application for the determination of costs in which they have been specified and fully proven by evidence, if not resulting from law anyway, so that they were never in dispute. Accordingly, the BMJ informed the judicial officer within a week that it would refrain from commenting. Nevertheless, for some unknown reason, the judicial officer has still not been able to bring herself to determine the further costs against the Federal Republic of Germany.

It will be interesting to see when the matter will come to a conclusion also in terms of costs.

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