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MPI Conference on “Constitutional Requirements for the Design of Supranational Legal Protection” - 23.05.2023

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On May 23d, the Department for Intellectual Property and Competition Law of the Max Planck Institute for Innovation and Competition organised a lecture on “Constitutional Requirements for the Design of Supranational Legal Protection”.

Speaker was Prof. Dr. Peter M. Huber (former Federal Constitutional Court Judge and former Minister of the Interior of Thuringia).

The lecture related to the constitutional complaints challenging the European Patent Office’s system of appeal. The speaker was the rapporteur in this case.

In its decision, dated November 8th, published on January 12th, the German Federal Constitutional Court “2 BvR 2480/10, 2 BvR 561/18, 2 BvR 786/15, 2 BvR 756/16, 2 BvR 421/13” considered the complaints as not admissible.

The speaker explained the relationship and interplay between various Articles of the German Constitution. These considerations were rather “technical” and mainly interesting for specialists in constitutional law. Those considerations might be important, what matters here is the end result.

The speaker made clear that for the GFCC, only the legal situation at the date of the decision was to be taken into account. There were 5 complaints, the oldest dating back to 2010 and the youngest being of 2018. It was thus not relevant that some complaints were already relatively old.

The speaker explained that the present decision was to be seen in the context of a series of decisions relating to Union law and decisions of the CJEU, and especially the decision of the ECB’s asset purchase programme PSPP. Although the EPO was not a body of the EU, similar conditions applied.

Other decisions were mentioned, like one relating to European schools of July 24th 2018, which is not an EU institution as such, and hence comparable with the EPO.

The speaker made clear that two periods ought to be distinguished: before and after 2016, i.e. before and after the reform of the structure of the BA.

For the speaker, before 2016 the BA were not independent as the head of the BA, VP3, was part of the management of the EPO. After the reform, the GFCC considered that the requirements for a minimum of independence were given.

The speaker explained that the complaints could have been successful, at least for the period before 2016, but the structure and wording of the complaints were not adequate and hence the complaints not properly substantiated. The same applied to the complaints still pending or filed after the reform, as they were as well not properly substantiated.

The speaker also made clear that complained lodged by entities based outside Germany or the EU were not admissible for this reason alone.  

The speaker made clear that the minimum level of effective legal protection offered in a proceedings in a supranational organisation cannot be the same as in German proceedings. The FGCC decision on temporary administrative judges in asylum procedures should not be overrated and does not apply in case of an international institution. It appears sufficient that the right to be heard has been respected, that decisions do not come as surprise, are duly motivated, and not arbitrary. Those conditions are fulfilled by the BA and the EBA of the EPO, certainly after the reform of 2016.

During the discussion following the lecture, the question of the independence in relation to appointments for a given time, with possible reappointment, came into play. The speaker noted that a similar situation existed at the CJEU.

On the other hand, he questioned the fact whether such a timely appointment was still acceptable in this day and age. Following a direct question about the present situation at the EPO, the speaker was of the opinion that there is still room for improvement with respect of the contracts and the reappointment of members of the BA.   


Press release in English



With due respect to the GFCC, it seems an easy way out when it decides that complaints are not properly substantiated. It would have been interesting to learn what the GFCC considers as being properly substantiated.

It might be legally correct that the legal situation at the date of the decision is to be taken into account, but it means that the GFCC can sit out a situation and never decide. The present decision was due as the speaker was on the verge of retiring.

In any case, as the complaints were not properly substantiated, the end result would have been the same with or without the reform of 2016. One could merely say that the reform of 2016 helped the GFCC to dismiss the complaints.

That there is still room for improvement with respect to reappointment of members of the BA was an interesting comment.  

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2 replies on “MPI Conference on “Constitutional Requirements for the Design of Supranational Legal Protection” – 23.05.2023”


Another aspect of the Bundesverfassungsgericht decisions which seemed an “easy way out” – and a controversial one at that – was that complaints by several of the parties were deemed inadmissible merely as they were lodged by entities based outside Germany or the EU:

“Die Verfassungsbeschwerden der Beschwerdeführerinnen zu II., III.1., III.3., III.6., III.9., IV.1., IV.3., IV.6. und IV.9. sind mangels Beschwerdeberechtigung unzulässig. Die materiellen Grundrechte des Grundgesetzes stehen ihnen von vornherein nicht zu. Es handelt sich bei diesen Beschwerdeführerinnen um juristische Personen, die ihren Sitz weder in Deutschland noch in einem anderen Mitgliedstaat der Europäischen Union haben. Nach Art. 19 Abs. 3 GG gelten die Grundrechte auch für inländische juristische Personen, soweit sie ihrem Wesen nach auf diese anwendbar sind. Ausländische juristische Personen mit Sitz in Drittstaaten können sich dagegen grundsätzlich nicht auf die Grundrechte des Grundgesetzes berufen (vgl. BVerfGE 21, 207 ; 100, 313 ) (1.). Um solche handelt es sich bei den oben genannten Beschwerdeführerinnen zu II., III.1., III.3., III.6., III.9., IV.1., IV.3., IV.6. und IV.9. (2.).

1. Wortlaut und Sinn von Art. 19 Abs. 3 GG verbieten eine ausdehnende Auslegung auf ausländische juristische Personen im Hinblick auf materielle Grundrechte … Das gilt auch für die Garantie effektiven Rechtsschutzes in Art. 19 Abs. 4 GG.”

I find this genuinely shocking – entities based outside of Germany or the EU are not entitled to the fundamental rights offered by the German Basic Law, including the guarantee of effective legal protection. Taken to extremes this suggests that – for example – a German patent or any other German property held by such an entity could be subject to completely arbitrary and capricious treatment, and could be denied effective legal protection, perhaps even subjected to a deliberately unfair trial.

This hardly seems acceptable.

Avatar photoDaniel X. Thomassays:

Thanks for your comment. It was a point I forgot to mention. I have edited my post in this respect.

I do agree with you that it is difficult to understand why complaints filed by entities based outside Germany or the EU were for this reason alone not admissible. It is indeed difficult to accept this in general, but even less in IP and patents.

After all we have to deal here with patents and Germany is a contracting state of the Paris Union Convention. Germany is a long time contracting state of the PUC, even if it did not join immediately.

Besides the well-known provision on priority (Art 4 PUC), the Paris Convention provides (Art 2 PUC) that each Contracting State must grant the same protection to nationals of other Contracting States that it grants to its own nationals. This means to me also to entities based outside Germany and the EU.

The EPC is a special agreement under Art 19 PUC. The distinction made by the speaker is thus, in view of the PUC, indeed not acceptable.

On the other hand the speaker explained that, in any case, the form and wording of complaints rendered those not admissible. The lack of reference to the PUC might have been one of the reasons.

I was personally more shocked by the fact that the GFCC can sit out the situation and only decide when it thinks fit. Without the rapporteur having to retire, we would most probably still be waiting for the decision.

As even the complaints filed before 2016 were not substantiated, it would probably not have changed much,

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