As anticipated by The IPKat here, Italy, France and Germany have reached an
agreement on the creation of the Milan
seat of Central Division to replace the former London section.
On 26 June 2023, the Administrative Committee of
the Unified Patent Court issued the decision under Article 87(2) UPCA to amend Article
7 (2) UPCA as follows:
“2. The central division shall have its seat in Paris, with sections in Milan and Munich. The cases before the central division shall be distributed in accordance with Annex II, which shall form an integral part of this Agreement.”
The competences of the former London section (indicated below in bold for easy reference) have been reallocated to the Paris seat and to the two sections of the Central Division as follows, thus by amending Annex II of the UPCA:
MILAN SECTION: (A) Human necessities, without Supplementary protection certificates;
PARIS SEAT: (B) Performing operations, transporting(D) Textiles, paper(E) Fixed constructions (G) Physics (H) Electricity, Supplementary protection certificates;
MUNICH SECTION: (C) Chemistry, metallurgy, without Supplementary protection certificates (F) Mechanical engineering, lighting, heating, weapons, blasting.
The review of the implementation of this decision will be launched in 3 years after its adoption, thus in advance of the general term of 7 years for the review of the Agreement as per Article 87(1).
The amendment of the UPCA was undertaken through the simplified revision procedure under Article 87(2), which allows the Administrative Committee to amend the agreement to bring it into line with an international treaty relating to patents or Union Law. The withdrawal of the United Kingdom from European Union and consequently from the UPCA constitutes a change in Union law.
The decision entered into force on the date of its adoption (26 June 2023) but according to Article 87(3) of the Agreement it will take effect 12 months after that date (26 June 2024). This is intended to allow a Contracting Member State to declare if it does not wish to be bound by the decision. Nevertheless, preparatory work will start immediately.
Unified Patent Court: reallocation of competences among Paris, Munich and Milan
Reviewed by Anna Maria Stein
on
Wednesday, June 28, 2023
Rating:
Reviewed by Anna Maria Stein
on
Wednesday, June 28, 2023
Rating:
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The AC's decision calls into question whether they are taking an overly-expansive view of the powers afforded to them under Article 87 UPCA.
ReplyDeleteThe text of Article 87(2) UPCA reads as follows:
"The Administrative Committee may amend this Agreement to bring it into line with an international treaty relating to patents or Union law"
In point 2 of the explanatory note to AC Decision dated 26 June 2023, the AC adopts the following interpretation of the powers afforded to it by that provision:
"the UPC Agreement provides for a simplified revision procedure. According to Article 87(2), the Administrative Committee may amend the Agreement to bring it into line with an international treaty relating to patents or Union law. The withdrawal of the United Kingdom from the European Union and as a consequence from the UPCA constitutes a change in Union law which allows the recourse to such simplified revision procedure"
The withdrawal of the UK from the EU was effected by an international treaty. Such a treaty does not qualify as "EU law". Further, that treaty did not change the provisions of any EU laws, but instead merely limited the extent to which they apply in the territory of the UK. From this perspective, it is doubtful whether the AC is technically correct to view the withdrawal of the UK as "a change in Union law".
However, even if one accepts the AC's view on this point, there is a complete mismatch between the purported "change in Union law" and the "Union law" mentioned in Article 87(2) UPCA.
If there is "Union law" in the sense of Article 87(2) UPCA, then there will be provisions of that law that will define the boundaries of the AC's amendment power. That is, Article 87(2) UPCA only confers upon the AC the power to make amendments that bring the UPCA into line with the provisions of the "Union law" in question.
On the other hand, a mere "change in Union law" would not appear to provide the AC with any amendment powers whatsoever. This is because, unless the specifics of the alleged "change" can be identified, then there is no "Union law" with which the UPCA can be aligned.
To look at this from another perspective, if the AC is empowered to make substantive amendments in this scenario, what are the limits on their amendment power?
Replacing London with Milan might remove an obvious source of conflict between the UPCA and principles of CJEU case law. However, was this really necessary to "align" the UPCA with EU law, given that the cases assigned to London had already been redistributed?
Also, there is absolutely no connection whatsoever between the goal of eliminating conflict with CJEU case law and changing the distribution of cases between the various branches of the UPC's central division. So why is it that the AC believes that the UK's withdrawal from the EU provides it with the power to amend Annex II to the UPCA?
Of course, the answers to these questions are political in nature, and not legal. That is, none of the "power players" involved wanted to go through all of the time and hassle of properly amending the UPCA according to the principles of the VCLT. However, it seems to me that taking the easy option, and thereby knowingly acting contrary to the rule of law, is not exactly the kind of look that an international court should be striving to achieve.
The decision to allocate SPCs to Paris but to leave the rest of A and C without SPCs respectively to Milan and Munich shows that the decision is a purely political decision. This decision has been taken by people who do not have a clue what SPCs are good for.
ReplyDeleteIt is difficult to do worse and the comments heard in the profession are not very forthcoming, to say the least.
When on the other hand, we see that the Commission wants to give a specific treatment to SPCs one wonders what the decision is good for. May be the Commission wants to avoid the mess so created by the UPC.
On the other hand, it is interesting to be informed that the Brexit Agreement is EU law.
I would therefore claim that the decision taken is the result of a clear misuse of Art 87(2) UPCA. This is even more a misuse as it enshrines the “provisional” allocation of the London duties to Paris and Munich by the Presidium of the UPC.
The decision of the Presidium has anything but a legal basis. How is it possible that a court interprets and amends the treaty on which it is founded.
All the judgements taken under these dubious conditions will have to be enforced. it is to be expected that those decisions will be challenged.