Constitutional court judge Prof. Huber on the situation at the European Patent Office (11/03/2021)

As is known, several constitutional complaints against acts of the European Patent Office are currently pending before the German Constitutional Court (“BVerfG”), in which, inter alia, a violation of the fundamental rights to effective legal protection (Art. 19 (4) GG) and to the lawful judge (Art. 101 (1) sentence 2 GG) is complained of (cf. docket no. 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 786/15, 2 BvR 756/16 and 2 BvR 561/18).

In the newest edition of one of the leading German commentaries on the German Grundgesetz, BVerfG judge Prof. Peter Huber, who is the judge rapporteur in the above-mentioned constitutional complaint proceedings, comments on the situation at the European Patent Office with regard to Art. 19 (4) GG as follows (von Mangoldt/Klein/Starck/Huber, Grundgesetz, 7th ed. (2018), Art. 19 GG, para. 540 ff., footnotes have been removed, translation from German):

“Against this background, the increasing erosion of the suspensive effect through the Europeanization of administrative procedural law (…) does not lead to a conflict with the claim to validity of the legal protection guarantee of Art. 19 (4), even if it encourages the trend towards a reduction of the German level of legal protection.

The same principles apply to the European Patent Office in Munich, which was established on the basis of the Convention on the Grant of European Patents (EPC) concluded on 5 October 1973, and has the task of granting a ‘European bundle patent’ as an intergovernmental body within the meaning of Art. 24 (1) in a uniform granting procedure according to uniform requirements. Its decisions can be appealed (Art. 106 EPC), these appeals are decided by Boards of Appeal with judicial independence (Art. 23 EPC). Their proceedings are designed in a judicial way, their activities are materially judicial in nature.

The compatibility of this possibility of appeal with the minimum standard of effective legal protection required by the Grundgesetz (Art. 24 (1), 79 (3), 19 (2) and (4)) is not hindered by the fact that the Boards of Appeal are not courts institutionally separated from the European Patent Office (Art. 15 EPC). This is because, on the one hand, the demands for structural congruence between the German legal system and intergovernmental bodies within the scope of application of Art. 24(1) did not prevail, and, on the other hand, the minimum level of effective legal protection required by Art. 19 (2), which must not be fallen short of even in the case of supranationalization of jurisdictional functions, is marked less by the institutional separation of the second and third powers than by the possibility of having any infringement of rights reviewed by an appeal to an independent body in a judicial procedure. This minimum is guaranteed under the EPC.“

The relevance of these comments with regard to the prospects of success of the aforementioned constitutional complaint proceedings is left to the reader’s assessment.