Pages 205-210

INFORMATION FROM THE CONTRACTING / EXTENSION STATES

DE Germany

Judgment of the Bavarian Verwaltungsgericht (Administrative Court), Munich, dated 8 July 1999

(M 29 K 97.8476)*

Headword: "National review of EPO decisions II"1

Article 19(4), 24(1) Basic Law (Grundgesetz: GG)

Section 20(2) Judiciary Act (Gerichtsverfassungsgesetz: GVG)

Section 40, 173 Code of Administrative Court Procedure (Verwaltungsgerichtsordnung: VwGO)

Article 1, 2, 4, 5, 8, 19, 21 ff, 99, 102, 106 ff EPC; Article 3(1), (4) Protocol on Privileges and Immunities

Keyword: "Decisions of EPO departments not acts of German public authority - System of legal protection under EPC meets requirements of German Basic Law"

Headnote

1. The revocation with effect in Germany of a European patent by an opposition division of the European Patent Office as a body of the European Patent Organisation is a sovereign act of an inter-governmental institution, not an act of German public authority. Accordingly, there is no possibility of recourse to the German courts, including the administrative courts.

2. Furthermore, the system of legal protection under the European Patent

Convention and the composition of the boards of appeal of the European Patent Office meet the minimum requirements of Article 19(4) GG.

Summary of facts and submissions

The claimant brought an action (...) before the Bavarian Administrative Court, Munich, which was asked to decide as follows: "The communication of the opposition division of the defendant2 (...), in the form of the decision of Technical Board of Appeal 3.3.2 dated 12 March 1997 (T 976/93- 3.3.2), is set aside, in so far as European patent No. 158090 was revoked with territorial effect for the Federal Republic of Germany".

The defendant (...) claimed immunity as an international organisation from jurisdiction. (...)

The claimant cited the following reasons for the admissibility of the action (...):

A right of appeal under Section 40 VwGO existed, because although the defendant was an international organisation (...), this did not exclude the protection of basic rights under Article 19(4) GG, (...) since the system of legal protection under the EPC was not comparable with the German judicial system. The board of appeal with responsibility under the EPC for the decision to revoke the patent did not (...) have the structure of a court and was therefore to be regarded as an administrative department. Under Article 19(4) GG and Section 40 VwGO, the claimant could resort to the courts to contest a decision of an administrative department.

The defendant made the following submissions (...). It claimed immunity from jurisdiction in accordance with Section 20(2) GVG. The appropriate means of contesting decisions of the European Patent Office was to lodge an appeal before the board of appeal of the European Patent Organisation. (...) Since the defendant (...) was acting in performance of its principal statutory duties, it could claim autonomous status and was therefore entitled to immunity from national jurisdiction in accordance with Article 8 EPC in conjunction with Article 3 of the Protocol on Privileges and Immunities. Moreover, the defendant's board of appeal fully complied with the requirements applying to judicial bodies.

In response to these arguments, the claimant maintained that (...), according to the Maastricht judgment of the Federal Constitutional Court (Bundesverfassungsgericht: BVerfG), an opportunity to assess decisions for compliance with minimum standards of elementary procedural fairness must also be available to German courts.

The defendant replied that (...) the board of appeal was a body independent of the Organisation and was also considered sufficient by the European Court of Human Rights. (...)

Reasons (extract)

The action is (...) inadmissible; in this case, the defendant is outside the jurisdiction of the German courts.

Under Section 173 VwGO in conjunction with Section 20(2) GVG, German jurisdiction does not extend to persons enjoying immunity from such jurisdiction in accordance with the general rules of international law or on the basis of agreements under international law or other legal provisions. Immunity from national, German, jurisdiction follows from Article 8 EPC in conjunction with Article 3 of the Protocol on Privileges and Immunities of the European Patent Organisation. Under Article 3, paragraphs 1 and 4 of that Protocol (...), its immunity from national jurisdiction extends to "the scope of its official activities". These "official activities" are to be understood as meaning all activities which are strictly necessary to carry out the administrative and technical tasks provided for in the Convention itself. The court is in no doubt that this includes the contested decisions of the defendant's opposition division and Technical Board of Appeal (see Articles 1 ff and 99 EPC). The revocation, like the grant, of European patents lies within the scope of the defendant's core activities as defined in the European Patent Convention. It would be contrary to the purpose and function of the authorisation conferred by Article 24(1) GG if an international organisation were at risk of being overruled by divergent decisions of national courts in matters vital to its autonomy. This would impair the functioning of the inter-governmental institution (on this issue, see BayVGH, No. 7 B 92.2689, p. 12 - European School; see also EGMR, NJW 1999, 1173).

The European Patent Organisation is an inter-governmental institution within the meaning of Article 24(1) GG. By an act under international law, it has been granted sovereign rights with regard to the grant and also the revocation of European patents (Articles 1, 2, 4, 102 EPC). Under Article 5 EPC, the Organisation has independent legal personality, and under Article 4(2), it is represented by the European Patent Office and the Administrative Council as its organs. Article 19 EPC provides for the opposition divisions as departments of the European Patent Office, Article 22 EPC for the Enlarged Boards of Appeal, Article 106 ff EPC for the appeals procedure against decisions of the Receiving Section, examining division, opposition division and Legal Division, and Article 113 ff EPC for the procedural rights of parties to these procedures.

If the revocation of a European patent in the form of a decision of the board of appeal in accordance with Articles 102, 106 and 111 EPC is thus shown to be acts of departments of the European Patent Office, as an organ of the European Patent Organisation, and if this is shown by reference to the principles laid down in the EPC to be an activity in an area vital to the autonomous activities of an international organisation, then the revocation of European patents is definitely not an act of German public authority to which the guarantee of legal protection under Article 19(4) GG can apply. Article 19(4) 4 GG does not cover sovereign acts of inter-governmental institutions. Nor do acts of such institutions become acts of German public authority by virtue of having been committed with the collaboration of the German national authorities (see, for example, Article I(3) of the Law on International Patent Treaties of 21 June 1976, Bundesgesetzblatt II 1976, 649 ff). Article 24(1) GG permits the Federal Republic to transfer sovereign powers to such inter-governmental institutions, even where the standard of legal protection against acts of those institutions is lower than that provided by Article 19(4) GG. Nor does Article 19(4) GG require a subsidiary jurisdiction of German courts (...) (Maunz-Dürig-Herzog, GG, No. 48 re Article 19; BVerfG, NJW 1982, 507 and 512). If the legal protection in connection with inter-governmental institutions falls behind the basic standard essential to the rule of law, then the participation of the Federal Republic in such institutions does not violate Article 19 but Article 24(1) GG. In the present case, which concerns the scope for review of an act of the defendant as an inter-governmental institution but not the cited law requiring federal assent, the court finds that there can be no question of any act having been committed by a German authority.

Irrespective of any assessment of the opposition system under the European Patent Convention according to the above-mentioned minimum standard (...), no other conclusion can be drawn from the case law of the Federal Constitutional Court cited by the claimant. Firstly, the so-called Maastricht judgment of 12 October 1993 is concerned, referring to the "Solange II" judgment of 22 October 1986, with the exercise of sovereign authority by a supra-national organisation in guaranteeing the basic rights of citizens bound by the law, whereas, in the present case, the court finds it reasonable to assume that the claimant, by applying for a European patent, entered into legal relations with the defendant voluntarily. Secondly, the present case is also not concerned with the impact of European law on national administrative (court) procedures. (...)

Finally, in the Maastricht judgment, the Federal Constitutional Court (...) neither suggested that the German courts should be a tribunal of last resort for reviewing acts of inter-governmental organisations, nor did it postulate a selective entitlement or obligation for German courts to review individual cases. This particularly applies where, as in the present case, the defendant can claim immunity under Section 20(2) GVG. It would be a misconstrual of the above-mentioned case law of the Federal Constitutional Court if a kind of dual legal protection (ie, in this case, that of the EPC and that of German administrative law) were to be provided against acts of international organisations which are categorically not acts of a German public authority.

The court is in no doubt that the system of legal protection described in Articles 106 and 113 ff EPC in conjunction with the Implementing Regulations to the Convention on the Grant of European Patents meets the minimum standard laid down in Article 19(4) GG. The court also has no doubts as to whether the composition, criticised by the claimant, of the board of appeal under Articles 21 and 22 EPC would meet these requirements, since Articles 23 and 24 EPC in particular expressly guarantee the independence of board members. (...)

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