Through discussions on another blog, I have discovered some hard to be believe facts, which put the whole construct of the UPC on an even more shoddy basis.
In various cases, Roku has requested before the UPC-CFI LD Munich and the CoA that the UPC refers a question to the CJEU about the legal status of the UPC.
See the blog entries Roku I and Roku II.
For Roku there is no legal basis for the deletion of London and its replacement by Milan, and Art 87(2) UPCA cannot be invoked.
In other words, the consequences of Brexit have not been properly understood and taken care for.
In comments published in Roku I+II, I have been accused to have ignored EU Regulation 542/2014.
I wish first to observe that EU Regulation 542/2014 is not mentioned whatsoever in the UPCA.
Secondly, it is EU Regulation 1257/2012 which is mentioned at different places in the UPCA, e.g. Art 2(e)+(f), 32(1)(h)+(6), 84(3) UPCA.
EU Regulation 1257/2012 has been amended by EU Regulation 542/2014.
It is to be noted that neither EU Regulation 1257/2012 nor EU Regulation 542/2014 mention Italy, and yet Italy has been brought in the UPCA by what I call a misuse Art 87(2) UPCA.
EU Regulation 1257/2012 and EU Regulation 542/2014 do however mention expressis verbis the UK.
In my humble opinion, before replacing London by Milan, both EU Regulations should have been amended as they represent the basis under which EU law is applicable by the UPC. The same should actually have been done with the PPA and the PPI, which still mentions the UK but not Italy.
Conclusion
Therefore, one wonders how the UPC CoA can endorse the trick with Art 87(2) UPCA to amend the latter by replacing the UK by Italy in Art 7(2) UPCA, and amending Annex II UPCA, when the EU Regulations governing the UPCA have not been amended.
We can see here a reason good enough to be a pretext for the UPC to resist, with any possible fallacious arguments, to a referral to the CJEU under Art 21 UPCA.
And yet the CoA UPC has, further to taking a decision by only 3 LQJ, in manifest breach of Art 9(1) UPCA, the nerve to claim that it is acting in accordance with Art 47(2) EU CFR and Art 6 ECHR.
I would have thought that the “rule of law” would be a untouchable sacred issue for judges in any court in the UPCA contracting states.
In another blog, I read the following comment: “The UPC Court of Appeal does not want to escalate the question of its own legality to the CJEU, but says “ensures [the] full effectiveness of Union law.”. What a joke!”
What is happening at the UPC is not a joke, it is tragic.
Comments
2 replies on “After Roku I+II, some further considerations on the legal basis of the UPC”
You are quite correct that Regulation 542/2014 does not mention “Italy”.
It does however refer to “the Italian Republic”.
@ Pete perfect,
My search query was based on EU Regulation 1257/2012. This is why I did not find Italy in EU Regulation 542/2014.
My mistake, which I fully owe up.
It does not change the fact that Art 87(2) has been misused and the VCLT carefully ignored.
Art 87(2) UPCA was actually designed so as to allow a simplified amendment of it, once all contacting states of the UPCA have signed and ratified, either international treaties, like TRIPPS, or when EU law has been amended in all contracting states of the EU. It has never been designed so as to overcome the consequences of the Brexit. It is the wrong answer to a real problem which has been carefully ignored.
As explained, the Brexit is anything but sure, since the UPCA has no exit clause, hence the VCLT should apply.
In the decision of the Administrative Committee under Article 87 (2) UPCA, of 26.06.2023, I have noted two problematic aspects.
First, it mentions the decision of the Presidium of the UPC dated 08.05.2023, on the provisional distribution of actions related to patents in IPC sections (A) and (C) pending before the Central Division.
What is the legal basis for this decision? I fail to see one. Where has it be seen that the presidium of a court is allowed to tamper with its founding treaty? The decision of the presidium is in the same vein as the decision of the CoA that decisions of the latter can be taken by 3 LQJs.
Second, while it mentions that Italy presented its candidacy to host a new section of the Central Division in the city of Milan at a meeting of the Preparatory Committee on 10.09.2020, there is another important meeting of the Preparatory Committee, which has been swiped under the carpet. A report of this meeting says the following:
“The Chairman presented a draft Declaration on the authentic interpretation of Art. 3 of the PAP-Protocol*, following the United Kingdom’s withdrawal from the Unitary Patent System. In line with public international law, this Declaration will confirm the entry into force of the PAP-Protocol, once the required 13 Member States become bound by said Protocol, recognizing that Art. 3 of the PAP-Protocol is to be interpreted as mirroring Art. 89 of the UPCA**. The delegations supported the approach proposed by the Chairman, hence giving him the mandate to organize a signing ceremony of the Declaration, foreseen in the margins of a future COREPER meeting.”
Such a declaration has never been thought for, and has neither been signed nor published. On the contrary, the depository, i.e. the Secretariate of the Commission, which does not have any decisive legislative power, declared on its volition that that the PPA and the PPI were in force.
Italy might have been mentioned in EU Regulation 542/2014, but it cannot be found in the PPA or the PPI, which are important legal agreements preceding the entry in force of the UPCA.
Even before the entry into force of the UPCA, the whole UPCA/UPC system was on a shoddy footing.
In spite of a formal mistake, I have thus every reason to stick to my views.
The UPCA is a construct which has ignored the rule of law, and this also applies to the people acting in the name of the UPC or the UPCA.