Constitutional complaint against the EPO rejected

Germany's Federal Constitutional Court rejected the constitutional complaint against the European Patent Office. A violation of fundamental rights - an obvious lack of legal protection - was not sufficiently substantiated, according to the Federal Constitutional Court.
The constitutional complaints against decisions of the Technical Board of Appeal and the Enlarged Board of Appeal have been dismissed as inadmissible by the Federal Constitutional Court in a decision published 12 January 2023.

The constitutional complaint against the EPO

In their constitutional complaint, the complainants essentially argued that the challenged decisions were based on a general and obvious lack of legal protection and violated fundamental procedural rights. These were mainly decisions cancelling or revoking European patents.
The rights to the lawful judge and the rights to be heard were claimed to have been violated.

The complainants referred to the fundamental structural reform of the legal protection system of the European Patent Organization, adopted in 2016. Since then, the Boards of Appeal and the Enlarged Board of Appeal have been organized as a separate Board of Appeal unit headed by the President of the Board of Appeal - independent of the President of the European Patent Office (EPO). The latter - together with the Board of Appeal Committee - proposes the President of the Board of Appeal. Once elected, the President enjoys independence within the framework of the EPC.

The complainants were a German partnership and several legal entities with registered offices in Germany, in member states of the European Union and in third countries.

Federal Constitutional Court of Germany on fundamental procedural rights

With regard to the third countries among the complainants, Germany's Federal Constitutional Court (in German: Bundesverfassungsgericht) ruled that the constitutional complaints were inadmissible for lack of standing. In addition, the court found that an invocation of a violation of the right to the lawful judge (Article 101 (1) sentence 2 of the Basic Law) and the right to be heard (Article 103 (1) of the Basic Law) was also inadmissible. For the Basic Law (the fundamental law in Germany, in German: Grundgesetz (GG)) can only be invoked if these rights are violated by German courts.

Measures taken by supranational institutions, on the other hand, are only examined by the Federal Constitutional Court to the extent that they either form the basis for actions of German state organs or trigger obligations to react on the part of German constitutional organs. However, the constitutional complaints do not do justice to this, the Federal Constitutional Court ruled and explained.

The court explained that Article 24 (1) of the Basic Law opens up the German legal order in such a way that the Federal Republic of Germany's exclusive claim to sovereignty in the area of application of the Basic Law can be withdrawn without requiring an act of implementation or enforcement. This also implies a restriction of the (fundamental) rights of its citizens.

However, the asserted fundamental procedural rights are specific manifestations of the more comprehensive principle of a fair trial (Article 20 (3) GG) and, as such, are addressed exclusively to the German judiciary within the meaning of Article 92 et seq. GG. In contrast, they do not bind an international or a supranational organization, their courts and judicial bodies, the Federal Constitutional Court explained.

Lack of minimum legal protection? Not substantiated

The constitutional complaints of the other appellants, which directly challenged the decisions of the Technical Boards of Appeal and the Enlarged Board of Appeal, were also dismissed. The constitutional complaints lacked a suitable subject-matter.

The court pointed out that a corresponding notice had been given to the complainants, but the complaint was not redirected. The appellants have not sufficiently substantiated that the minimum level of effective legal protection required under constitutional law would not be achieved by the organization of the legal protection system of the European Patent Organization, at least after the structural reform of 2016.

Rather, the EPC contains:
- a prohibition on participation by members of the Enlarged Board of Appeal in proceedings in which they were involved at the lower instance (Art. 24(1) EPC)
- decisions of the EPO may only be based on grounds on which the parties have been able to comment (Art. 113(1) EPC)
- Decisions must be pronounced promptly after oral proceedings (Art. 15(9) UPC 2019)

Although this was not a complete organizationally separation of the panels of the Boards of Appeal and the Enlarged Board of Appeal, such a separation was not necessary, the Federal Constitutional Court ruled. An overall view of a shortfall of the minimum level of effective legal protection is was not (any longer) supported since the structural reform of 2016, the Federal Constitutional Court concluded.

Transfer of jurisdictional responsibilities not erroneous

The complainants limited themselves to an application of constitutional requirements to the German judiciary, the court explained. In doing so, they failed to recognize that the essence of Article 19 (4) of the Basic Law does not guarantee completely identical legal protection in the event of a transfer of jurisdiction to an intergovernmental body, but only a minimum standard of effective legal protection. However, a shortfall of this minimum standard was neither shown nor recognizable.

The constitutional complaint against the European Patent Office was dismissed in its entirety by decision of 08 November 2022 (2 BvR 2480/10, 2 BvR 561/18, 2 BvR 786/15, 2 BvR 756/16, 2 BvR 421/13), published 12 January 2023.

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