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.
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