by Dr. Markus Herzog, Patent Attorney and Partner at Weickmann & Weickmann
On 12 December 2019, three and a half years after the Leave vote of the British people, the Tories won the absolute majority of seats in the House of Commons, and Boris Johnson immediately announced to get the Brexit finally done by 31 January 2020.
But, will that have any immediate effect on the faith of the UPC agreement? Not at all! There are still too many questions to be answered.
In the following, I will briefly summarize where we stand and which possible situations we might have to face.
1 First of all, the European Union (EU) will have to decide whether the United Kingdom (UK) should be allowed to stay a member to the UPC agreement.
As the UPC agreement clearly states that only members of the EU may participate, it seems logic that the UK may no longer be a party to the UPC agreement. As a consequence, the agreement would have to be re-negotiated, as London located in a future non-EU state as such can no longer be the seat of a branch of the Unified Patent Court. This would result in a further delay of the UPC system for an indefinite period of time.
However, there are as well voices uttering that the UK could remain in the UPC system. The main argument presented is that the relevant point of time is the time of ratification (the UK ratified the UPC agreement in April 2018), and not the time of the agreement entering into force, and that a later change in the member/non-member status of a country which once ratified the agreement is irrelevant.
According to my personal opinion, these voices ignore that the UPC agreement itself clearly states that only EU member states are allowed to participate. Stepping out of the EU means stepping out of each and every institution of the EU, even if not yet established. In this context, it should further be kept in mind that the requests of several members of the European Patent Convention (EPC), e.g. Switzerland, who wished to participate in the UPC system, were rejected referring to their status a non-EU member states.
In case the remaining EU member states would tend to allow the UK to participate in the UPC system, I expect a series of further plaints against the UPC agreement, which again would delay the start of the UPC system.
2 Furthermore, it is not clear whether the UK would wish to stay a member to the UPC agreement. On the one side, the UK certainly would be pleased to keep London as a seat of a branch of the Unified Patent Court taking all the effort and money spent for its establishment into account. On the other side, a main goal of the Brexiteers was that no European court should be allowed to judge over British citizens what the European Court of Justice would do as the last instance of the UPC system.
3 Some weeks ago, a judge of the German Federal Constitutional Court (FCC) announced that the competent senate of the FCC would issue a decision on the constitutional complaint against the UPC agreement in the first quarter of 2020. In other words, it is not unreasonable to assume that the FCC will give its decision after the Brexit.
If the FCC should reject the constitutional complaint and give green light to the ratification, Germany will ratify the UPC agreement and the EU will have to deal with the questions discussed in point 1.
If the FCC should grant the constitutional complaint, different constellations may arise depending on the Federal Constitutional Court’s reasoning (see my newsletter dated 4 February 2019). For simplicity, I shall limit myself to the simplest and most complicated constellation:
i) In the simplest constellation, it is merely necessary to rerun the voting process in the German Bundestag and German Bundesrat.
ii) In the most complicated constellation, the European Patent Convention has to be amended (analogous to the constitutional change following the decision of the Federal Administrative Court in 1959; see point 1 of my newsletter dated 19 February 2018) in order to establish a truly independent European appellate court. For this purpose, however, a Diplomatic Conference needs to be held and not only the EU member states are to attend this conference but also the non-member states of the EPC.
Additionally, it must, of course, again be clarified where the UPC’s branch is to be seated instead of London. In any case, however, there will be a considerable delay in the start of the UPC system.
4 Summarizing, 1 January 2021 is the earliest reasonable date for the start of the UPC system under the pre-condition that a) the EU against all afore-discussed concerns allows the UK to stay a member of the UPC agreement, that b) the UK wishes to stay a member of the UPC agreement, and that c) the FCC judges in favor of the UPC agreement. For all other scenarios, we will have to face a further delay in the start of the UPC system.