GuestPost: Do certain panel compositions of the UPC Court of Appeal breach article 6 ECHR?

The UPC Court of Appeal in Luxembourg

Amidst the humblebrags and #blessed postings, LinkedIn these days is also full of posts on stats from the Unified Patent Court (UPC). 
As Merpel was wading through the usual analysis, she stumbled across a novel topic in a post from her Parisian Kat friend, Lionel Martin (August-Debouzy) posing the question as to whether the Court of Appeal's panel composition is in breach of the European Convention of Human Rights (ECHR) - and whether anyone would care enough to challenge it.

Over to Lionel:

"Since its opening this June 1, 2023, very few cases have reached the appeal level, and even fewer have been subject to an appeal decision (less than 10 published by the Unified Patent Court so far as of today).

Other than the appeal of the first successful preliminary injunction (NanoString Technologies and others v 10x Genomics and others, ref: APL_576355/2023 UPC_CoA_335/2023 - where the PI was overturned), the UPC Court of Appeal has mainly been dealing with procedural questions on the legal interpretation of the Rules of Procedure and UPC Agreement (UPCA).  As a result, the Court of Appeal took the position that for those appeals, the Court of Appeal's panel would be composed of only 3 Legally Qualified Judges (LQJs). 

However, this approach seems at odds with the principle enshrined in Art. 9(1) UPCA.  Article 9(1) provides:  "Any panel of the Court of Appeal shall sit in a multinational composition of five judges.”  That composition is 3 LQJs and 2 Technically Qualified Judges (TQJs).  The only exception to this principle is the one of Art.9(2) concerning decisions of the European Patent Office in carrying out the tasks referred to in Article 9 of Regulation (EU) No 1257/2012.  In those cases, the panel is 3 LQJs. None of the pending appeals before the UPC appears to deal with this exception, and yet most of the appeals have not added 2 TQJs to the 3 LQJs to obtain a 5-judge panel under Article 9(1).

This question of the composition of Court of Appeal panels does not seem to have been bluntly disregarded by the UPC. Indeed a particular set of appellate decisions in the Panasonic against OPPO campaign acknowledged the issues (3 decisions of 18, 19, and 20 December 2023, respectively UPC_CoA_472/2023, App_594327/2023, UPC_CoA_476/2023, App_594339/2023, UPC_CoA_478/2023, App_594342/2023).  Here, the Court of Appeal attempts to justify the lack of TQJs for cost effectiveness and efficiency reasons considering the question at stake (change of language from German to the English language of the patent).

Lionel Martin
But a corresponding analysis by August-Debouzy of patent litigation and public law case law appears to indicate that stepping away from the UPCA principle of 5-judge panel, including 2 TQJs, would contravene the principle of a court instituted by law protected under article 6 of the European Convention of Human Rights. 

In particular, according to ECHR caselaw, the principle of efficiency referred to on the above-mentioned UPC decisions does not seem to permit the reduction to the number of judges within a panel.  Notably, there is no express provision in the UPCA to allow the Court of Appeal to depart from the rule.  Up to this date, this Guest Kat has not been aware of any case where the respective parties complained about the lack of TQJs in the appeal. Should one party decide to challenge the 3 LQJ practice, the Court of Appeal's practice may engage the ECHR and consequences for breach.

Why does this matter? 

This breach of the principle of the 5-judge panels has at least two consequences. 

The first type of consequence is more philosophical. This practice of the Court of Appeal is regrettable since the inclusion of technically qualified judges in the panels of the Court of Appeal was not intended to be limited to only providing the court with technical skills. In various hearings since the start of the UPC, the UPC could have notably heard from TQJs on their views on purely legal questions. The exclusion of TQJs therefore gives rise to a suspicion that the legally qualified judges only see technically qualified judges as technical experts that the Court is free to consult or not. 

Three legally qualified British short hair judges
in the UPC....sadly only a fantasy post Brexit
(thanks to Dall-E)
The second consequence is the setting of caselaw. Since this court is just starting, several procedural questions are still open and are waiting for the Court of Appeal to provide users with more clarity. Having more views and opinions on important issues at the crucial start of the Court, is surely better and makes the system more robust.  Thus why, in some national courts, for important issues courts will sit in a larger panel composition.  

A significant corresponding example is the current debate as to the public access to the register. Most of the requests for the public access to the register are stayed pending the appeal by Ocado on the Nordic-Baltic’s ruling that granted access to the case to a member of the public. Yet this appeal was heard on March 12, 2024 by a panel of 3 LQJs that will set the standard for all cases, while excluding TQJs who may also have had their view on it. During the hearing, the 2nd panel of the Court of Appeal nevertheless invited the speakers to comment on this lack of TQJs for this case.  We await for the corresponding written ruling on this. 

Predictability is usually the criterion sought by court users when deciding whether to pursue litigation in the UPC over a national court, during this transitional period. Alas, a little flaw in panel composition may require us and court users to bide our time a bit more..."

GuestPost: Do certain panel compositions of the UPC Court of Appeal breach article 6 ECHR? GuestPost:  Do certain panel compositions of the UPC Court of Appeal breach article 6 ECHR? Reviewed by Annsley Merelle Ward on Monday, April 01, 2024 Rating: 5


  1. Two quick comments. First, I agree that in the initial stages of a new court more opinions could be useful. I would add that with LQJs in the more procedural matters, too, their learning curve would be steeper. Second, creating a two-tier system - TQJs as second class citizens - from the get-go is simply bad for the cohesion of the court.

  2. Further to the problem mentioned by Lionel Martin, there are other problems under Art 6(1) ECHR.

    It is first the provisional allocation of duties originally allocated to London to the Paris and Munich sections of the central division and second, the opening of a Milan section of the central division.

    The provisional allocation of duties was decided by the presidium of the UPC in blatant breach of Art 7(2) UPCA and of Annex II of the same, even before the UPC actually opened its doors. Where was it ever seen that a court can decide by itself to amend and interpret its founding treaty and thereby willingly ignore Art 31 and 32 VCLT?

    The amendment of the UPC by the Administrative Committee of the UPC under Art 87(2) UPCA seems as well lacking any legal basis. According to Art 87(2), the Administrative Committee may amend the UPCA to bring it into line with an international treaty relating to patents or Union law. Which international treaty on patents or Union law can be use as pretext to amend the UPCA as it has been done? In the decision of the committee there is also no trace of Art 31 and 32 VCLT.

    Art 87(2) UPCA has been designed to align the UPCA to legislations adopted in all contracting states, be it under a international treaty on patents or Union law, for example a EU SEP or SPC regime.

    Art 87(2) UPCA was never devised in order to adapt the UPCA to Brexit. This is even more the case, since the UPCA does even not contain any exit clause. The withdrawal of the UK with a simple “Note Verbale” is as well doubtful.

    It does thus not come as a surprise when the Court of Appeal decided to get read of the 5 member composition for reasons of efficiency. Efficiency was also the reason invoked by the presidium when it decided to change the allocation of duties, even before the UPC opened its doors.

    What matter here is the rule of law and not some efficiency considerations. Parties and the public at large should be able to trust a court. This is the reason d'être of Art 6(1) ECHR. Why has it blatantly be ignored with all those "adaptations" of the UPCA?

  3. Well, clearly, obviously, unquestionably, Simon has a very good point. I always knew the UPC was rushed through too quickly and required a few decades more thought and consideration to avoid the consequences of back-of-a-fag-packet drafted legislation.

  4. It is certainly very clear that the three LQJ panel compositions do not comply with the UPC's "constitution", namely the UPC Agreement. However, the most important question to which no clear answer has yet been provided is: what, if anything, can affected parties do about this?

    The UPC is an international organisation that is supposed to apply EU law but that, technically speaking, operates outside of that law and by its own rules. Possible means of redress for parties to proceedings before the UPC are therefore very limited indeed.

    Involvement of the CJEU is one possible avenue in cases where the UPC's actions violate EU law. However, that avenue is only open to parties to UPC proceedings in cases where the “unconstitutional” actions of the UPC raise questions of interpretation of EU law that have no clear or established answers. Moreover, even if such questions do arise, they will only be referred to the CJEU if the UPC (Court of Appeal) is persuaded that a preliminary reference is necessary to decide the case before them.

    However, if the UPC violates EU law in a manner that raises no issues of interpretation (ie is clear based upon the wording of the EU law, or prior CJEU interpretations of the same), then not even the preliminary reference procedure will be open to parties to UPC proceedings. In such instances, it would be up to the Member States to take action ... and I would not hold my breath waiting for that!

    Involvement of the European Court of Human Rights (ECtHR) is another possible avenue that could be explored by parties to the proceedings. However, the ECtHR has demonstrated that it will not take up cases against international organisations, even if there is clear and indisputable evidence of such an organisation breaching provisions of the European Convention on Human Rights. In this respect, I refer readers to the black hole at the ECtHR that greeted SUEPO’s action relating to the EPO’s breaches of the right to collective bargaining.

    The main problem, of course, is that UPC has no constitutional court of its own. It is therefore free to mark its own homework when it comes to any “creative” interpretations of the provisions of the UPC Agreement that it might choose to adopt. Whilst complaints at national constitutional courts might be one (final) avenue for affected parties to seek redress, I very much doubt that any of them will want to get involved in a case where it is hard to ignore evidence that supports a ruling adverse to an international organisation and that would be almost impossible (or at least very unpalatable) for the national court to enforce.

    I very much hope that I am wrong, but this looks to me like another fait accompli. That is, now that the UPC has been brought into life in its current form, it seems that there is very little that any of us can do to persuade it to abide by relevant laws, including its own constitution.

  5. In theory, Art. 81(1)(b) UPCA should apply, but would the Court of Appeal of the UPC rule against a decision of the Court of Appeal of the UPC?

  6. I think since the Article 22.1 provides a liability regime that could be helpful here:
    (1) The Contracting Member States are jointly and severally liable for damage resulting from an infringement of Union law by the Court of Appeal, in accordance with Union law concerning non-contractual liability of Member States for damage caused by their national courts breaching Union law.
    The paragraph 2 goes on by indicating before which national courts the action for violation could be filed.

    1. Is Article 22.1 UPCA helpful in this scenario? Only if an affected party wants to waste time and money on a futile exercise!

      Firstly, damages would by no means provide adequate compensation to a party deprived of their Art 6 ECHR rights to a fair trial (by a tribunal established by law).

      Secondly, what specific, financial damages would be the direct result of the UPC's infringement of Art 6 ECHR (and Art 47 of the EU Charter of Fundamental Rights)? It is not as if the parties concerned can prove that they would have obtained a better result if the UPC Court of Appeal had conducted their trial with the correct composition, instead of just 3 LQJs.

      Even a December 2018 report from the European Parliament reaches very negative conclusions on the (in)effectiveness of analogous non-contractual liability provisions for the EU:

      Moreover, the academic commentary quoted in the Parliament's report is so critical that it goes as far as suggesting that the right to damages is essentially illusory, as it is rarely capable of being enforced.

  7. Concerning panels comprising only 3 LQJs, it is interesting to analyse the justifications given in the Court of Appeal’s order dated 18 December 2023. Whilst one can have sympathy with the aims expressed (namely efficiency, cost effectiveness of proceedings and expeditious decisions), it is hard to avoid the impression that the Court of Appeal is essentially trying to re-write Article 9 of the UPC Agreement.

    In essence, the Court of Appeal eschews the plain meaning of Article 9 in favour of a “flexible” interpretation based upon:
    1) a “consideration” in the preamble of the UPC Agreement;
    2) logic underlying the composition of First Instance panels;
    3) preambles to the Rules of Procedure; and
    4) UPCA Articles to which those preambles refer, including Articles 41(1), 42 and 52(1).

    A serious problem with the reasoning that at points 3 and 4 is that, according to the hierarchy of norms (and the provisions of the VCLT), an Article of the UPCA that has a clear meaning cannot be afforded a different interpretation based upon rules under that Agreement. Indeed, Article 41(1) UPCA makes this point explicit by stating that “The Rules of Procedure ... shall comply with this Agreement and the Statute”.

    Further, a potentially fatal weakness of the reasoning at point 2 is that Articles 8 and 9 of the UPCA draw clear distinctions between the compositions required for panels for Courts of First Instance and those required for the Court of Appeal. In the light of such distinctions, it does not seem possible to interpret Article 9 by reference to logic underlying the different compositions of the panels defined in Article 8, none of which comprise the five members that, according to Article 9(1), is the default for panels of the Court of Appeal.

    Moreover, Article 9(2) defines an exception to the general rule provided by Article 9(1), in that the Court of Appeal may sit in a three-member panel when dealing with appeals under Article 32(1)(i). This is the sole exception to the general rule of Article 9(1) that the legislator provided. To my mind at least, this fatally undermines the reasoning at point 2. That is, Article 9(2) makes it clear that the legislator considered exceptions to the general rule of Article 9(1) and decided to provide only one such exception. Given that exceptions are typically interpreted narrowly, this would appear to rule out the creation (by judicial interpretation) of a further exception that contravenes the plain meaning of Article 9. This is all the more so for judicial interpretations that rely upon a rather vague set of aims set out in a preamble to an agreement.

    Finally, it seems to me that perhaps the most troubling issue with the Court of Appeal’s “flexible” interpretation of Article 9 UPCA is that it poses new questions to which no clear answers can be found in the legislation. For example, which criteria should be used to determine the decisions for which the Court of Appeal can sit in a panel that excludes TQJs? How can those criteria be derived from the legislation? Who takes the decision to exclude TQJs, and at which point in time? If the decision is taken by an LQJ, how can they be certain that the input of a TQJ will neither be required for nor relevant to the issue(s) to be decided?

    Most importantly, if the Court of Appeal is able to effectively re-write provisions of the UPCA (by applying such “flexible” interpretations), what does this mean for the rule of law at the UPC?

  8. The entire argumentation of the CoA collapses when one reads the first sentence of Art 9(1) UPC Agreement which, as I understand it, is not mentioned at all in the CoA’s order and reads as follows: „Any panel of the Court of Appeal shall sit in a multinational composition of five judges.“ This sentence leaves no doubt that a composition of three LQJ is not admissible, unless permitted under Article 9(2) UPC Agreement. Gloomy prospects …


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