Context: There is only one major controversy surrounding the UPC, but it is a fundamental one: docket distribution (April 13, 2026 ip fray article). Last week, the European Patent Lawyers Association (EPLAW) published and quickly retracted a blog post citing “well-informed sources” and claiming that France, Italy, and Belgium blocked the appointment of four new UPC judges, conditioning their consent on the creation of a working group to “discuss the perceived uneven distribution of cases among the various UPC divisions”.
Analysis & opinion
There are only three reasons for which EPLAW could have withdrawn that bombshell post: they received information that proved it wrong; someone asked them to take it down because it was too divisive; or they had planned from the beginning to put out the message, but to remove it shortly upon publication for institutional reasons.
Given that they cited “well-informed sources” (plural), and considering the reputational damage from fake news, it is hard to imagine that this was wrong. The most reasonable operating assumption is that what EPLAW claimed had indeed happened.
The unanimity requirement for judicial appointments in Art. 16(2) is a fundamental flaw of the UPCA
It appears that whenever EU member states engage in enhanced cooperation, they have a propensity to agree on bad voting rules.
The European Central Bank (ECB) is the only system of its kind where the debtors can decide the amount and the terms of their loans. There are more debtor than creditor countries in the eurozone. The European Court of Justice (ECJ) does not shy away from miscarriage of law if that’s what it takes to keep the eurozone together, so it allows lending to governments through the back door (buying government bonds on the market; and there is Target 2, which most Europeans have never heard and which represents a trillion-euro Ponzi scheme). The root cause of this moral hazard is a “one country, one vote” system with a simple majority requirement.
In the UPC’s case, the problem is not so much that each country has one vote. The problem is that any one country can block judicial appointments under Art. 16(2) UPCA:
On the basis of that list [provided by the Advisory Committee], the Administrative Committee shall appoint the judges of the Court acting by common accord. (emphasis added)
Everyone knows how difficult it was to put the UPC in place at all. It took decades. But history doesn’t change the fact that the UPC is effectively at the mercy of any single member state.
The same structure would be much less harmful in the case of a private company. Directors would have a fiduciary duty. They would not be allowed to abuse their voting rights if it jeopardizes the company’s operations. No such duty exists for government officials casting votes on their countries’ behalf in the UPC’s Administrative Committee.
2029 will be the year of reappointments
According to Art. 4(1) of the UPC Statute, judges are appointed for six-year terms. Most of the presently sitting judges were appointed in 2023. That means reappointments will be needed in 2029, and reappointments will again require “common accord” under Art. 16(2) UPCA.
At this point, countries that block judicial appointments are just flexing their muscles without threatening the court’s operations. If new filings stabilized on the order of 40 infringement actions per month (November 10, 2026 ip fray article), more judges would be needed badly, but that number may have been a bit of an outlier.
If all those 2029 reappointments were blocked, the number of remaining judges would be too low to keep the court operational.
The UPC would not be the first international court to suffer this fate
In 1995, the World Trade Organization (WTO) and its Appellate Body were created. The United States has vetoed so many judicial appointments that in 2019 this court lost its ability to decide and in 2020 effectively had to shut down. It exists on paper, but it’s entirely dysfunctional.
There is no satisfactory solution to the docket distribution problem under the current UPCA
I know that some will disagree, but I don’t see how the docket distribution problem could be solved under the existing UPCA. The measures that have been proposed were either just harmful to the UPC as a whole or irreconcilable with the UPCA.
Some measures can be taken to make non-German local divisions more attractive, but one would have to be realistic about their impact. Under the current UPCA, only minor adjustments would be achievable.
In some countries, there already are unofficial discussions and thought experiments about leaving the UPC system
The marginalization of some countries’ patent litigation venues by the UPC can be explained, but no explanation makes it politically acceptable.
The practical reality is that the UPC primarily serves the purpose of empowering German judges to give more leverage to American and Asian litigants in global disputes. It does not solve any of Europe’s problems. It does not make Europe more innovative or competitive.
At first sight, it may appear unrealistic that any contracting member state (such as France or Italy) could actually leave the UPC system, given that the UPCA is theoretically of an unlimited duration and does not contain an exit clause. But there are secret discussions in certain countries, and if one thinks about it, the sad reality is that it would actually be easier to enable an orderly exit of some countries than to amend the UPCA to the effect of satisfactorily addressing those countries’ concerns.
It is possible that if a country like France or Italy left the UPC system, more patent cases would be filed in those countries than now (at least if one doesn’t count Central Division cases). The only uncertainty here is BSH Hausgeräte v. Electrolux. But that is a different topic.
Let’s compare the challenges:
- Amending the UPCA to the extent that a substantially higher percentage of cases gets assigned to French, Italian, Belgian etc. venues would be a tall order. It would be a treaty change requiring ratification in every single country. In a country like Denmark, that would mean a referendum or a massive (5/6) supermajority in parliament. And it would potentially invite new constitutional challenges, such as in Germany.
- Ratification hurdles are generally lower if countries renationalize competencies than if they delegate authority to international bodies. Some sort of exit protocol would be desirable, but not even strictly necessary. Faced with the choice of countries exercising their veto rights (especially in 2029) or letting them go, the remaining contracting member states, the European Commission (which would have to enforce EU law against renegade member states), and the European Patent Office (with a view to Unitary Patent grants) would have no choice but to elect the second option. Some transitional solutions would have to be found for one or two Central Division seats and for the continued enforceability of already granted Unitary Patents. And it would presumably help to amend EU Regulation 1257/2012.
The question is, of course, who would actually want to stay. There is not a single country other than Germany that benefits from the UPC.
It could end like a party where after the first two or three people leave, everyone else decides to do the same.
If France, Italy, and Belgium found just two more allies, they could also block those decisions by the UPC’s Administrative Committee that require a 75% supermajority. But they don’t even need that. They already hold a nuclear option in their hands. They could wind down the whole system simply by blocking judicial (re)appointments. That’s why this precedent of them having exercised their veto power shows just how flawed the UPCA’s Art. 16(2) is. It could be the UPC’s undoing in a worst-case scenario.
France, Italy, and Belgium are playing with fire, but if they burned down the UPC, their national law firms would definitely get more patent litigation business than now.
ip fray favors jurisdictional diversity and venue diversity. We are profoundly impressed by the work the UPC has done and keeps doing. But we would also be happy to cover more interesting cases in French, Italian, Belgian, or other national courts.
What’s going on behind the scenes could have dramatic consequences for the UPC. There’s no point in trying to ignore the elephant in the room.