/ Created by Gottfried Schüll, Prof. Dr. Siegfried Broß

“The modern constitutional state becomes a farce”

The structure of the European Patent Convention (EPC) is incompatible with the German Basic Law (“Grundgesetz”) in many ways, says Prof. Dr. Siegfried Bross, former judge at the German Federal Constitutional Court. An interview about obstacles and failures on the way to a Unified Patent Court.

When discussing the planned Unified Patent Court (UPC) experts keep on pointing out deficits in the European Patent Convention (EPC). Can you please clarify these deficits?

To understand these discussions, it helps to take a look at the structural characteristics that accompany the formation of the UPC: Through the EPC, the individual contracting states have entered into a state union. However, this did not take into account other obligations these countries are subject to – for example as a contracting state to the European Convention on Human Rights, as a European Union member state, or according to domestic constitutional law. A very superficial approach, if you ask me. Because, it runs the risk of sacrificing democracy, constitutional state principles, and human rights for the structures in the new state union. This also concerns the configuration of employment statuses: In a union of states, such as the European Patent Organisation (EPO), with thousands of civil servants and highly differentiated structures, the work environment and conditions must be symmetrically regulated and arranged. All member states are thus obliged to fulfil their individual tasks in a constitutional, democratic way while observing human rights. Only then can they meet the standards and values of the EU in the long run. However, particularly in the area of human rights, there has already been much cause for concern on the EPO level.


You are referring to the occurrences at the European Patent Office (EPO) and the pending constitutional complaints in Germany?

Exactly. As is known, it has in the past come to heavy conflicts between the administration, staff and the SUEPO union at the European Patent Office, the executive body of the EPO. Only in October 2017 did the chairman of the administrative board mention particularly unfortunate circumstances and expressed the hope that these would no longer occur under the new president António Campinos. This only underlines the immense constitutional-democratic deficits within the EPO, the fact that human rights were ignored, and that the administrative board failed as a supervisory body. These failures are harrowing – and cast a damning light on the regulations of the EPC and the organizational structure of the EPO. The organizational structure chosen by the contracting states and their renunciation of constitutional-democratic commitments have also contributed to this. To a certain extent, a parallel world has developed here in international law, which should give us reason to worry: Rule of law, democracy, and human rights are thus in jeopardy. This has in fact gone so far that companies that produce in certain states do not feel responsible for the observance of human rights.


What about the organizational structure of the European Patent Office?

Clear deficits can also be seen here: For example, the EPO administration is also in charge of the organizational unit within the EPO for the judicial bodies. The president is ultimately the “supervisor” of the judicial bodies and their members. The institutional autonomy of the judicial bodies with an own budget, legal personality and an independent autonomous management is thus missing. Executive and judiciary are therefore not separated. But it is exactly such a separation that is a core element of a modern constitutional state and a prerequisite for fair legal protection in the sense of the EPC. In this way, the constitutional state becomes a farce!


How can the aforementioned deficits be effectively resolved?

When passing judgements, the Federal Constitutional Court should provide references as to how the objected legal bases, including the EPC, should be understood. That is the only way to win back legal certainty on a European and international level. I also believe that the Federal Republic of Germany, as a contracting state, has a duty to advocate an amendment of the EPC and to ensure that the judicial bodies are taken out of the EPO structure and set up as independent institutions.


What other constitutional problems do you see in the structure of the UPC?

Above all, I see the problem of reference. For example: Article 140 of the [German] Basic Law is based on the church articles of the Weimar Constitution in the previously valid version. Due to the downfall of the constitutional legislator at that time, a change can no longer be made – that means that a static reference is given. It is transparent and included in the will of the present constitutional legislator. The situation is different for the inclusion of rules and regulations that are not fixed in the future but are open to change – including the EPC and the decision options for the organs of the EPO. Even if 27 states of the European Union are members of the EPO, this possesses its own statehood and enjoys immunity. The administrative proceedings of the UPC regarding a patent application thus do not follow unchangeable rules. As the member states of the EU are not identical to the member states of the EPO, this can be qualified as a dynamic reference. This results in a structural deficit, which could cause the entire UPC project to collapse.

The interview was conducted by Gottfried Schüll.