At the meeting of the Unified Patent Court (UPC) Preparatory Committee on 10 September 2020 – convened by videoconference to discuss, among other things, the effects of the United Kingdom's withdrawal of its ratification of the court's founding agreement – Italy announced its intention to nominate Milan as the new branch of the UPC headquarters instead of London. Other candidates include Amsterdam and Copenhagen.
Provisional redistribution of competencies
The post-meeting report made no express mention of the new UPC headquarters and generically explained that "issues concerning the effects of the UK withdrawal were discussed as well as appropriate ways forward", and that "good progress was made and the Committee is confident that pragmatic and legally sound solutions will be found that will enable the unitary patent system to be functional in a near future".
The Italian Ministry of Foreign Affairs, on the other hand, issued a more detailed statement, in which it revealed that the Preparatory Committee had "confirmed the willingness of the participating States to ensure the entry into force of the UPC as soon as the ratification process is completed, and hopefully as early as the beginning of 2021". To allow this to happen, the committee has:
approved a provisional redistribution of the competencies of the London office between the existing offices in Paris and Munich, provided however, that this is a short-term solution, pending the entry into force of the Agreement and that Italy can start, in agreement with the other signatory States, the procedure for amending the Pact to include Milan as the third seat of the central Court division.
Article 7.2 of the agreement establishing the UPC provides that the "central division will have its headquarters in Paris, with sections in London and Munich. Cases before the central division shall be distributed in accordance with Attachment II, which forms an essential part of this Agreement". The agreement also states that the London section will primarily be for pharmaceutical and life science patent cases.
As a result of Brexit, the principle of treaty conservation, which can also be derived from the Vienna Convention on the Law of Treaties 1969, requires this rule to be interpreted as meaning that, as a consequence of the United Kingdom's withdrawal, the head office continues to have two detached sections and the London office must be reassigned. Consequently, the UPC's functions can be temporarily divided between Paris and Munich, given that the London office must be reassigned by a fixed deadline.
This means that a head office with two branch offices is established in the founding agreement itself, and that if one of these two offices becomes unavailable, it must be replaced by another branch office.
In this context, the choice of Milan is certainly not mandatory, but should be taken seriously, for many reasons.
First, the criteria followed to designate London was that the United Kingdom was the third EU member state for the number of patents, followed by Italy in fourth place.
Second, Italy accounts for 52% of medicines sold in the European Union, so it is the ideal candidate to host the UPC pharmaceutical patents branch.
Third, Italy is a global symbol of quality of life due to its outstanding lifestyle, food and wine culture and fashion and design tradition, as well as its innovative sectors (eg, biomedicals, mechanics, mechatronics and AI) and the spin-offs that these activities create.
Milan is Italy's most European city, located at the centre of an area that, despite the recent COVID-19 outbreak, remains one of Europe's most important centres of research and innovation, particularly in terms of innovative companies and research, including university research. Further, Milan is home to various centres of excellence, such as the Politecnico of Milan, the University San Raffaele and Humanitas Hospital, which are all active in the pharmaceutical and life science sectors.
Milan is an asset that may help the entire European Union to compete on the global stage, and its choice as a location for the UPC headquarters would therefore help to enhance the European Union's reputation worldwide.
The assignment of one of the UPC's three headquarters would mean much more than moving an EU institution to Italy. It would be an important part of a project to relaunch and requalify the EU economy following the COVID-19 emergency, starting from a clear vision of the future based on the strengths of the various EU member states and concrete ways in which to improve them.
