European Commission would welcome swift German ratification of Unified Patent Court Agreement

Time for Boris to pull the plug and send its notification to the secretariat of the Council of the EU. That's what Mr Tillman was suggesting in its previous interview.

It is also strange to consider agreements not into force part of "Union law".

Talk about deja vu. In the UK, in the run up to BREXIT, HMG flying on auto-pilot, deposited its instrument of accession to the UPCA. Now, the EU Commission, another craft flying on auto-pilot, happily announces that it would "welcome" ratification of the UPCA by Germany. Sometimes the ship, sailing on its pre-set course, is so enormous that it takes years to change course. Somebody on the bridge has first to issue an authoritative command. Those underlings who are responsible for Press Releases have no authority to do anything else but state what course the ocean-going liner is proceeding along.

Well, the only way to describe that response is that is uses carefully selected language to make statements that, whilst not strictly untrue, are highly misleading. Most misleading of all is the statement that "participation in that system, including the Unified Patent Court Agreement, is only open to EU Member States". The trouble with this is that termination the UK's membership of the EU does NOT automatically terminate the UK's participation in the UPC Agreement. Whilst Mr Tilmann has (rather dubiously, in my opinion) suggested that a notification from the UK would serve to terminate its participation in the UPCA, not even he has suggested any plausible mechanism under the Vienna Convention for AUTOMATIC termination of the UK's participation at the end of the transitional period. There has certainly not been any "notification" from the UK to the other Participating Member States of the UPCA. Thus, the problem with the UPCA remains that the UK will be (and, arguably, already is) a "third country" under EU law. In this sense, Mr Breton's response simply does not address the legal issue underlying Mr Breyer's question. Whilst extremely disappointing, this is hardly surprising ... given the level of "political" support for the UPCA at the EU level. It remains to be seen whether national courts (such as the BVerfG) will be persuaded by such misleading responses. In my experience, courts tend not to be so easily misled. Also, given that Germany is proposing to ratify the UPCA by relying upon arguments that happen to work very nicely for their legal profession (by effectively dividing between Munich and Paris cases that would have gone to London), it remains to be seen whether the other Participating Member States (such as Italy) can be persuaded that this is acceptable. Whilst various carrots and sticks will no doubt be deployed, I doubt that it will be so easy to persuade all of the PMSs. Finally, I have my doubts about Jan's suggestion that the UK should formally withdraw from the UPCA. Recent years have seen many highly dubious (and sometimes contradictory) legal theories wheeled out to keep the UPCA "alive". In this respect, I have no doubt that Mr Tilmann would find some way of arguing the UK's formal withdrawal would not prevent the UPCA from coming into force. No doubt he would also concoct some arguments for salvaging the associated Protocols (on Provisional Application and Privileges and Immunities), regardless of the fact that those explicitly call for ratification by the UK...

The last thing the EU Commission wants is to re-open the can of worms that it created by not providing robust entry and exit of membership of the system, and by not really providing a flexible mechanism relating to the seat of the courts, instead relying, as usual, on a political compromise (one might be so unkind to say, "as usual"). The statement from a French commissioner is therefore totally unsurprising, given that France was the first country/major user of the UPC system to ratify. I do find that the comms unit adding on a Covid-crisis hanger as some sort of justification crass in the extreme, as it clearly indicates that the Commission will use anything it can to try and justify its position. It would be nice, for once, if the legal issues surrounding the UPC (and there are several) could actually be sorted out before the whole things gets ratified and dragged screaming into existence, but of course, that would take another umpteen years of negotiating and horsetrading...