Brexit Blues Reverb
October 10, 2025
Remember the days of old? The burning days of Brexit. When the UK decided to withdraw from the EU and the UPC system. When UK Judges would not become UPC judges. When Milan replaced London as a section of the Central Division. Days of old, but not long past, are now remembered in the Court of Appeal’s Roku/Sun decision.
Brexit brought a de facto end to the UK’s participation in the UPC system. The de jure basis for this end has been questioned by some. As has the UPC’s Administrative Committee’s decision to remove London and add Milan as a Central Division section in the UPC Agreement (23 June 2023 decision).
The Administrative Committee (‘AC’) reasoned at the time:
“According to Article 87(2), the Administrative Committee may amend the Agreement to bring it into line with an international treaty relating to patents or Union law. The withdrawal of the United Kingdom from the European Union and as a consequence from the UPCA constitutes a change in Union law which allows the recourse to such simplified revision procedure.”
The UPC’s CoA has now revisited the AC’s decision in the Roku/Sun appeal (6 October 2025 decision, in German). At the same time the CoA considered the compatibility of the UPC’s jurisdiction with EU law.
As to the latter, the CoA decided that the allocation of jurisdiction to the UPC (Artt. 31-32 UPC Agreement, Art. 71a et seq. Brussels Ia Regulation) does not interfere with the division of tasks between the EU Court of Justice and national courts (Art. 19 TEU, Art. 267 TFEU).
In short, the UPC clearly is a court common to EU member states. Comparable to the Benelux Court of Justice, the UPC belongs to the EU’s judicial system, its decisions thus being subject to the mechanisms ensuring full effectiveness of Union law. In this regard, the CoA points out that the UPC Agreement “was concluded solely by EU Member States, without the participation of the Union or third countries”.
The lack (of participation) of a London Central Division section did not violate the UPC Agreement (specifically not Art. 7 (2) UPC Agreement). Aside from the inadmissibility of this ground under R. 19 RoP, the CoA considered this objection unfounded.
According to Roku the absence of a London section could have had an impact of the composition of the UPC’s panel resulting in a fundamental rights violation. The CoA disagreed. The establishment of a London section has become factually impossible. The failure of this establishment and the failure to consider British judges in the appointment process can (therefore) not raise legitimate doubts about the independence and impartiality of the UPC judge(s).
Moreover, the CoA also accepts the AC’s June 2023 decision to replace London with Milan. The CoA, however, does so with an analogous interpretation of Art. 87 (2) UPC Agreement. The CoA considers it an unintentional regulatory gap that the UPC Agreement does not provide for the power to amend if implementation of the UPC Agreement proves impossible. Art. 87 (2) UPC Agreement serves the purpose of ensuring that there are no obstacles to implementation of the Agreement. Since a corresponding need exists in the case of ‘factual obstacles’, the provision applies by analogy.
Roku’s argument that the change in the UPC’s structure is a fundamental change that requires democratically legitimate decisions by the Contracting Member States was dismissed. The involvement of the Contracting Member States is sufficiently ensured due to the right of veto in Art. 87(3) UPC Agreement, again by analogy. That provision provides that an AC decision does not take effect if a member state, within 12 months of the decision, declares that it does not wish to be bound by the decision. Such a veto would result in a ‘Review Conference’ of the states. There has been no veto...
The CoA decision’s reverbs the Brexit blues. Some may hear false notes in its legal reasoning. But the choice is clear: no melancholy for the sound of the past, but a sound of the future (without the UK; or not?).
Comments (5)
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The Observer
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!
DXThomas
The present decision of the UPC CoA is not only severely criticisable, in view a lot of assumptions made by the panel, but it is like the pot calling the kettle black. Alone the fiddling with Art 7(2) UPCA and Annex II UPCA deserves a referral to the ECJ, as the UPCA does not contain any exit clause. The practical reality might be what it is, but the rule of law is a high good which should not be tampered with. Any consensus interpretation should not ignore the rule of law, as it results for instance from the VCLT. Coming with Art 87(3) UPCA is not the proper answer as the decision of the Administrative Committee is not a legal decision, but a political one. Moreover, the present decision of the CoA has been taken by a panel comosed of 3 LQJ, whereas the explicit text of Art 9(1) UPCA provides that each panel of the CoA is composed of 3 LQJ and 2 TQJ. I thus wonder whether the present decision is at all compatible with Art 47(2) EU CFR and Art 6(1) ECHR as claimed by the present panel.
DXThomas
I can fully support “The Observer”. The refusal of the UPC to escalate the question of its own legality to the CJEU is not a joke. It is tragic. The situation at the UPC, with respect to Art 21 UPCA, is actually comparable to the situation before the boards of appeal of the EPO under Art 112 EPC. If a board does not want to refer questions proposed by a party, it will find lots of reasons to refuse a referral. The situation is the same at the UPC when it comes to a referral to the CJEU under Art 21 UPCA. The dithering of the board in T 56/21 with a referral on the adaptation of the description is a good example of it. In this situation, the EPO boards of appeal and the UPC are at the same time both judge and party. This does not seem correct, especially in the case of the UPC. The EPLA was vetted by the CJEU, why has the draft of the UPCA never been submitted to the CJEU? In the present case, a referral to the CJEU would not only have been appropriate but necessary. This could however have been dangerous for the whole system, and explains why any argument, how weak it might be, is good enough to refuse it. The question raised by Roku is far from linked with the interpretation of R 19.1 RoP by the CJEU. it is a fundamental issue. However, linking a referral to the CJEU with R 19.1 RoP is indeed a joke. On the other hand, the UPC was quick to adopt the BSH Electrolux decision of the CJEU, C 339/22 of 25.02.2025. Such a behaviour from the UPC is not promoting the confidence in its attitude. This is a fundamental problem of the respect of the rule of law. The present decision of the CoA UPC is to be equated with a "dynamic interpretation" of the UPCA, even going as far as negating the original text of it.
The Observer
"The EPLA was vetted by the CJEU, why has the draft of the UPCA never been submitted to the CJEU?" EPLA was never vetted by the CJEU, it was analyzed by the Legal Service of the European Parliament, and seen illegal according to EU law. The UPCA cannot be submitted for an opinion to the CJEU like the UPLS and it's Opinion 1/09, because the EU is not party to it. However, the lie of the 'common court' is in the Brussels régulation, which can be submitted to the CJEU via a National Court, as the UPC does not want to do it.