In the five complaints (one of which dated back to 2010) several complainants, domiciled in Germany, member states of the European Union (EU), and in third countries, asserted that the challenged Technical and Enlarged Board of Appeal decisions were based on general and manifest deficiencies in the available legal protection and violated procedural fundamental rights. These included the principle of a fair trial (Art. 2(1), in conjunction with Art. 20(3) GG), the right to one’s lawful judge (Art. 101(1), 2nd sentence GG), and the right to be heard (Art. 103(1) GG), laid down in the Basic Law (Grundgesetz, GG).

The court held that the complainants domiciled in third countries cannot invoke fundamental rights of the Basic Law (Art. 19(3) GG), and, moreover, that none of the complaints were directed at violations of these procedural fundamental rights by German courts within the meaning of Arts 92 ff. GG (Arts 101(1), 2nd sentence and 103(1) GG).

The court held that, according to the established case law of the court, acts of institutions, bodies, offices and agencies of the EU cannot be directly challenged by means of a constitutional complaint. They may however be reviewed by the court if a claim can be made that such acts exceed the scope of the EU’s integration agenda (Integrationsprogramm), and affect the minimum standard of fundamental rights protection that the legislator is obliged to guarantee also with regard to the EU, and that German constitutional organs are required to take steps against such acts due to their responsibility with regard to European integration (Integrationsverantwortung). Note that the European Patent Office (EPO) is not an institution, body, office or agency of the EU.)

Furthermore, the court held that the complainants entitled to lodge constitutional complaints (the complainants not domiciled in third countries) did not sufficiently substantiate their claim that the appeal system within the European Patent Organisation (EPOrg) fails to provide the minimum standard of effective legal protection required under Art. 19(4) GG, and that the German constitutional organs are therefore obliged to take steps to respond.

Finally, the court found that, in any case, the structural reform of the Boards of Appeal, that came into force on 01 July 2016, separated administrative and judicial tasks and granted judicial functions performed by the Boards of Appeal a high degree of institutional autonomy. Consequently, the court held that any shortcomings that may have existed, but that were not dealt with in any details by the complainants, were essentially rectified, at least to the extent that they now fulfil the minimum standard.

The court helps to ensure respect for and to give effect to Germany’s free democratic basic order, in particular to the enforcement of fundamental rights provided by the Basic Law. All (German) bodies exercising public authority are obliged to observe the Basic Law.

The present decision does not really come as a surprise, because not even the acts of institutions, bodies, offices and agencies of the EU can be directly challenged by means of a constitutional complaint. The court’s sole standard of review is the Basic Law, and its course, manifested by recent decisions, underlines Germany’s commitment to the European patent system founded in 1973, and the new Unified Patent Court (UPC) currently expected to open on 01 June 2023.

Useful links

• BVerfG press release 12 January 2023: dycip.com/bvg-news-12jan23
• Decision of the Second Senate of 08 November 2022: dycip.com/decision-8nov22
• BVerfG decision 2 BvR 2368/99: dycip.com/2BvR2368-99
• BVerfG press release 09 July 2021: dycip.com/bvg-news-9jul21
• BVerfG decisions 2 BvR 2216/20 and 2 BvR 2217/20: dycip.com/2BvR2216-20
• BVerfG decision 2 BvR 739/17: dycip.com/2BvR739-17