German Federal Constitutional Court Dismisses Appeals against the EPO’s System of Appeals
January 12, 2023
Damocles, so tells us an ancient legend (reported here) was a favorite of President Dionysios II. of Syrakus in Sicily, who lived during the first half of the 4th century BC. His story was succinctly told by none other than Marcus Tullius Cicero in his tusculanae disputationes 5, 61–62. Hoping that Cicero will forgive me, I will tell it again here yet in a slightly modernized version.
According to the legend, Damocles was pandering to Dionysius, exclaiming that the President was truly fortunate as a great man of power and authority without peer, surrounded by magnificence. In response, Dionysius offered to switch places with Damocles for one day so that Damocles could taste that very fortune firsthand. Damocles quickly and eagerly accepted the king's proposal. Damocles sat on the king's throne, surrounded by countless luxuries. There were beautifully embroidered rugs, fragrant perfumes and the most select of foods, piles of silver and gold, and the service of attendants unparalleled in their beauty, surrounding Damocles with riches and excess.
But some evil parties hostile to the President and his organisation had arranged that a sword should hang above the throne, held at the pommel only by a single hair of a horse’s tail to evoke the sense of what it is like to be king: though having much fortune, always having to watch in fear and anxiety against dangers that might try to overtake him. Namely, had the sword fallen down, it might at least have severely wounded the President's organisation and/or have forced one of its most important members to withdraw therefrom entirely.
By Richard Westall, Ackland Museum, Chapel Hill, North Carolina, United States of America, Public Domain, Link
Damocles finally begged the king that he be allowed to depart because he no longer wanted to be so fortunate, realizing that with great power comes great responsibility. And so it happened and the President entered the throne again.
But the story did of course not end there. It turned out that the President also was not too happy with the sword hanging over the throne, so he asked his Guardians of Justice to remove it. And he made it palatable for them to comply with his wish by conceding a few changes to the judiciary, which some viewed as a rectification of alleged deficiencies in the separation of powers (a concept the President never really believed in), whereas others viewed it as mostly camouflage.
The Guardians of Justice deliberated on the Sword and the President’s wish for a couple of centuries (according to the legend, of course; in reality it was much faster, in fact only 12 years). But today the festive day finally came and the sword was safely stowed away. The Justice mainly responsible for the decision received the great cross of merit with star and shoulder ribbon and was gladly allowed to retire.
And Dionysius the President happily leaned back on his throne and continued to benignly rule over his island realm as he did in the past, at least according to the opinion of his Council of Electors. And they all lived happily ever after.
Großes Verdienstkreuz mit Stern und Schulterband, source: commons.wikimedia.org
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For a more serious reading on a completely unrelated subject, please turn to today‘s press release of the German Federal Constitutional Court, which is available both in German and in English. You may also wish to directly study the unanimous decision of the 2nd Senate of the Federal Constitutional Court dismissing the various appeals challenging the court-like character of the EPO’s Boards of Appeal and several of its decisions. Particularly parties not domiciled in Germany may possibly be surprised that Germany’s fundamental rights are not applicable to them. I am no constitutional lawyer, just a humble patent attorney, but I query whether it is really right that fundamental substantive and procedural rights only apply to Germans, not to foreign parties who seek justice before a German (constitutional) court. To be perhaps a bit blunt, I find this a bit appalling for a modern democratic country. Germans in turn may be somewhat surprised that the right to one’s lawful judge and the right to be heard can only be violated by German courts, not by the EPO as such. In regard to the EPO and other international organisations to which Germany has acceeded, only a „minimum standard of effective legal protection“ is required by the Basic Law. And this minimum standard seems to have been met by the EPO, at least after the 2016 reform of the Boards of Appeal. My simple take on this is that Germany has acceeded the EPO and the UPCA with the requisite 2/3 majority of MPs, now we are stuck to it. Later complaints to the Bundesverfassungsgericht are more or less undesired „buyer’s remorse“.
Two main consequences arise from today’s decision. Firstly, and this is certainly satisfactory and relieving to the EPO itself and its many customers (including my own firm), there will be no disruption of the existing system, and the EPO may continue to examine and grant patents as in the past. Secondly, any improvements in the structure, democratic and judicial oversight, and/or separation of powers within the EPO can only be achieved politically, if at all.
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Concerned observer
There is a certain irony regarding the FCC's decision on the complaints filed in 2010 and 2013. That is, if the FCC had acted in a timely manner (within about 5 or 6 years from filing of the first complaint), then the decision would have been handed down before BOTH Brexit AND the 2016 "reforms" of the EPC. As I understand it, the FCC's decision would have looked VERY different in such circumstances, with only formal grounds (wrong basis for the legal complaints) potentially preventing the complaints from succeeding. Thus, by demonstrating an alarming lack of urgency, the FCC has greatly simplified the task of dismissing the complaints. The irony here is that the excessive delays provide reason to doubt the FCC's impartiality ... and hence whether the FCC itself meets the standards that are discussed at length in its decision.
Mike Snodin
Thorsten, an excellent article, as usual. I share your concerns about the FCC's decision having the effect of narrowing the possibilities for meaningful (positive) reforms of the EPC. I also worry about precisely how bad things have to get before the set-up and/or running of an international organisation breaches the "minimum standard of effective legal protection" that it is expected to provide. The ECtHR is an international court, and all EPC Member States are also signatories to the ECHR. I would therefore have thought that a suitable "minimum standard of effective legal protection" ought to be that established in the case law of the ECtHR. I therefore find it curious that the FCC does not reach this obvious conclusion, instead seemingly preferring to leave us all guessing precisely which principles (of judicial impartiality, etc.) established in the case law of the ECtHR might apply to international organisations. Looking, for example, at principles elaborated in para 143 of the FCC's decision, it seems to me that there are serious reasons to doubt whether the set-up at the EPO meets the standards set in ECtHR case law. For example, the prohibition against judges having even an ADVISORY function in the "legislature" or "executive" would seem to present particular problems for the EPO. As revealed by G 1/21, the current set-up at the EPO makes it possible for a judge who has written, or directed the creation of, "legislation" not only to participate in a case relating to that legislation (including by appointing the members of the EBA) but also to stay in post unless and until excluded pursuant to a partiality objection raised by a party to the proceedings. Also, looking at R 12/22, it seems that the EBA has failed to learn from the exclusion debacle in G 1/21. As you will recall, I have previously expressed concerns regarding weaknesses in the set-up at the EPO that could, at least in theory, enable the AC to exert an improper influence over (members of) the Boards of Appeal. (https://patentblog.kluweriplaw.com/2020/11/03/a-few-thoughts-on-trust-and-judicial-independence/) In this respect, it is a shame that the FCC did not elaborate on why the independence of the Boards of Appeal (from the AC) is nevertheless guaranteed, at least to a "minimum standard". Perhaps most disappointing of all, however, is the FCC's assumption that, despite an obvious conflict with the plain meaning of Article 11(3) EPC, Rules 12a and 12d provide the dominant (i.e. binding) provisions of the EPC with regard to appointment of members of the Boards of Appeal. Whilst it is theoretically possible that the FCC's view on this point is correct, that view relies upon two potentially questionable assumptions. Firstly, it assumes that either: - despite appearances, Rules 12a and 12d are in fact consistent with the correct interpretation of Art 11(3) EPC; or - Rules 12a and 12d modify the meaning of Art 11(3) EPC (by way of a "dynamic" interpretation). Secondly, it assumes that the President of the EPO cannot revoke the delegation of certain of his duties to the President of the Boards of Appeal. The latter assumption is perhaps even shakier than the former. This is because it raises the question of what legal remedy, if any, the EPC might provide in the circumstances where the President revoked the current delegation of authority. Indeed, Art 4 of the Act of Delegation specifically provides for its revocation (in "exceptional circumstances", which are of course not defined). Moreover, the current Act of Delegation is nothing more than a Decision of the President (that can presumably be overridden by a later, contrary Decision), and only delegates authority to the current President of the Boards of Appeal (and so will not apply to the next incumbent of that position). If the EPC does not contain a mechanism for ENFORCING the continued delegation of authority pursuant to Rules 12a and 12d, then how is it that those Rules provide any kind of GUARANTEE (of judicial impartiality)?
Farcical is too mild
Thanks to Thorsten for putting the finger where it hurts in a very pleasant but nevertheless clear way. On the other hand, the present decision does not really come as a surprise. From the moment it was known that the rapporteur was going to retire, something had to be done in order to get read of those complaints. The result goes in the same direction as that of the Dutch Supreme court which considered that the ILO-AT was sufficient to insure that the rights of staff were correctly apprehended and protected. We all know that this is not the case and the ILO-AT only checks that the procedures have been correctly applied. It is only in case of a gross abuse of power that it acts. The decision taken by the GFCC is a political decision and not a decision in which legal standards have been respected. I would claim that the GFCC has not acted according to Art 6(1) ECHR which provides that a fair trial should be taking place at a public hearing within a reasonable time. I might be wrong, but there has not been any public hearing. When one sees that the first complaint was filed in 2010 the latest in 2018, that it took between 4 and 12 years to come to a decision, it is difficult to claim that the decision has been taken within a reasonable time. We all know that the reform of the boards in 2016 was not carried out in order to increase the independence of the boards but only to increase the perception of their independence. The reform looks fine on paper but we all know what the reality is strong doubts are permitted. I will just allow myself to mention the pantomime with G 3/19 and worse G 1/21 with Art 15a RPBA20. When one sees how the tail is wagging the dog, independence of the boards is an illusion. In view of all what has happened in the last years, it appears more than doubtful that the change of the status of the boards decided by amendment of the Implementing Rules is in accordance with the spirit and even the letter of the EPC. The EPO proposed a reform of the boards in 2005. It was refused by the AC. Now we pay the price for this non-decision. As long as the budget of the boards is not sent directly to the AC but can only be presented by the president of the EPO, independence of the boards remains an illusion. The standards of performance which has to be achieved by a member in order to be reappointed are still not public. When it comes to German judges the GFCC has made clear that temporary judges cannot be re-appointed. Why does it not apply the same standard to the members of the boards? It seems a very convenient way, often used by the GFCC to dismiss complaints by alleging “that the complainants that were entitled to lodge constitutional complaints did not sufficiently substantiate their claim”. Four out of the five complainants have filed their complaints before the reform of 2016. Claiming that they did not sufficiently substantiate their claims, also with respect of the reform of 2016, is ludicrous and at best a bad excuse. I do not support the way the political authorities in Hungary or Poland are dealing with the judiciary, but I am allowing myself to raise the question whether the mode of designation of the judges at the GFCC is so much better. The designation is purely political and it is well known that party wishes are dominant in the designation process. When a former MP, acting next to his duty as MP as lawyer, goes directly from the Parliament to the GFCC, or when a former Minister-President of a German “Land”, goes also from his post as political leader to the GFCC, it is difficult to dismiss the very political nature of the designation process. When even a constitutional court does not really abide by the rule of law, doubts are permitted about the direction our societies are going. The next scandal is the UPCA and its “dynamic interpretation” by its proponents.