Headnotes

to the order of the Second Senate of 8 November 2022

- 2 BvR 2480/10 -

- 2 BvR 421/13 -

- 2 BvR 756/16 -

- 2 BvR 786/15 -

- 2 BvR 561/18 -

EPO

1. Acts of supranational organisations within the meaning of Art. 24(1) of the Basic Law cannot be directly challenged by constitutional complaint.

2. To the extent that supranational organisations within the meaning of Art. 24(1) of the Basic Law adopt legal acts, the Federal Constitutional Court can review not only the domestic act approving the transfer of sovereign powers, but also whether the organs of the supranational organisation subsequently violated the minimum standard of fundamental rights protection required by the Basic Law. The Federal Constitutional Court may also consider whether German constitutional organs, within the scope of their competences, properly fulfilled their duty to ensure that these minimum standards are upheld. Just like Art. 23(1) of the Basic Law, Art. 24(1) of the Basic Law in conjunction with Art. 1(3), Art. 19(2), Art. 79(3) and Art. 93(1) confers upon the Federal Constitutional Court an indirect power of review.

3. The minimum standard of effective legal protection required by the Basic Law must be determined in light of the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

FEDERAL CONSTITUTIONAL COURT

- 2 BvR 2480/10 -

- 2 BvR 421/13 -

- 2 BvR 756/16 -

- 2 BvR 786/15 -

- 2 BvR 561/18 -

IN THE NAME OF THE PEOPLE

In the proceedings
on

I. the constitutional complaint

- 2 BvR 2480/10 -,

II. the constitutional complaint

- 2 BvR 421/13 -,

III. the constitutional complaint

- 2 BvR 756/16 -,

IV. the constitutional complaint

- 2 BvR 786/15 -,

V. the constitutional complaint

- 2 BvR 561/18 -

the Federal Constitutional Court – Second Senate –

with the participation of Justices

Vice-President König,

Huber,

Hermanns,

Müller,

Kessal-Wulf,

Langenfeld,

Wallrabenstein

held on 8 November 2022:

1. The proceedings are combined for joint decision.

2. The constitutional complaints are dismissed.

R e a s o n s :

A.

The constitutional complaints directly challenge decisions of the Technical Boards of Appeal and/or the Enlarged Board of Appeal of the European Patent Office. One constitutional complaint also indirectly challenges individual provisions of the European Patent Convention (EPC), the Implementing Regulations to the Convention on the Grant of European Patents (Implementing Regulations), the Rules of Procedure of the Boards of Appeal of the European Patent Office (RPBA), and the Rules of Procedure of the Enlarged Board of Appeal of the European Patent Office (RPEBA).

I.

1. The introduction of the European Patent Convention (see a) below) established the European Patent Organisation (see b) below), of which the European Patent Office is an organ (see c) below). The provisions of the European Patent Convention are further supplemented by the Implementing Regulations (see d) below). The proceedings before the Boards of Appeal and the Enlarged Board of Appeal are governed by separate rules of procedure (see e) below). Patent protection at the national level remains unaffected by the provisions of the European Patent Convention (see f) below).

a) The European Patent Convention is an international treaty that was signed on 5 October 1973 by the Federal Republic of Germany and 15 other European states. It was approved by the Federal Republic of Germany through the Act on International Patent Conventions (Gesetz über internationale Patentübereinkommen ) of 21 June 1976 (cf. Federal Law Gazette, Bundesgesetzblatt – BGBl II p. 649 ff.). Due to the accession of further states (cf. BGBl II 2008 p. 179 and 2011 p. 1139), the number of contracting states has now risen to 38. In addition, validation and extension agreements have been concluded with other states.

The European Patent Convention has been amended on several occasions, most recently by the Act of 29 November 2000 revising the Convention of 5 October 1973 on the Grant of European Patents (cf. OJ EPO 2001, Special Edition No. 4, p. 3 ff.). Germany signed this amending Act on 21 August 2001 and ratified it by domestic act of approval of 24 August 2007 (cf. BGBl II 2007 p. 1082).

The purpose of the European Patent Convention is to strengthen cooperation between the states of Europe in respect of the protection of inventions, achieving this goal by means of a single procedure for the grant of patents (Preamble to the European Patent Convention). For the contracting states, the Convention serves to consolidate the large number of national procedures into a centralised procedure before the European Patent Office. The granted patents confer protection of uniform extent (Art. 69 European Patent Convention). In each contracting state, these patents have the effect of a national patent granted by that state (Art. 2(2) European Patent Convention). Patents granted under the Convention are called “European patents” (Art. 2(1) European Patent Convention).

b) According to the case-law of the Chambers of the Second Senate of the Federal Constitutional Court (cf. Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 8, 325 <329>; 17, 266 <270>; Federal Constitutional Court, Order of the Fourth Chamber of the Second Senate of 4 April 2001 - 2 BvR 2368/99 -, para. 14; Order of the Second Chamber of the Second Senate of 7 December 2017 - 2 BvR 444/17 -, para. 17), the European Patent Organisation is a supranational organisation within the meaning of Art. 24(1) of the Basic Law (Grundgesetz – GG). It has administrative and financial autonomy (Art. 4(1) European Patent Convention), it has legal personality (Art. 5(1) European Patent Convention) and, in each contracting state, it enjoys the most extensive legal capacity accorded to legal persons under the national laws of that state (Art. 5(2) European Patent Convention). The European Patent Organisation is a subject of international law and is represented by the President of the European Patent Office (Art. 5(3) European Patent Convention).

c) Pursuant to Art. 4(2) of the European Patent Convention, the organs of the European Patent Organisation are the European Patent Office and the Administrative Council. The European Patent Office has the task of granting European patents, while the Administrative Council is tasked with supervising the activities of the European Patent Office (Art. 4(3) second sentence European Patent Convention). The Administrative Council is composed of the representatives and alternate representatives of the contracting states (Art. 26(1) first sentence European Patent Convention). Each contracting state is entitled to appoint one representative and one alternative representative (Art. 26(1) second sentence European Patent Convention).

Art. 15 of the European Patent Convention provides for the creation of certain divisions to carry out the procedures laid down in the Convention. Specifically, these are the Receiving Section (Art. 16 European Patent Convention), the Search Divisions (Art. 17 European Patent Convention), the Examining Divisions (Art. 18 European Patent Convention), the Opposition Divisions (Art. 19 European Patent Convention), the Legal Division (Art. 20 European Patent Convention), the Boards of Appeal (Art. 21 European Patent Convention) and the Enlarged Board of Appeal (Art. 22 European Patent Convention).

aa) The President of the European Patent Office is appointed by the Administrative Council pursuant to Art. 11(1) of the European Patent Convention. The President manages the Office and is responsible to the Administrative Council (Art. 10(1) European Patent Convention). Pursuant to Art. 10(2) of the European Patent Convention, the President is responsible for organisational, staff-related, budgetary, legislative and quasi-legislative tasks and for public relations. They have the right to make proposals and be consulted on the appointment of senior employees (Art. 11(2), (3) and (5) European Patent Convention). They appoint and promote the other employees and exercise supervisory and disciplinary authority over the staff (Art. 10(2)(f) to (h) European Patent Convention). The President is assisted by a number of Vice-Presidents who, if the President is absent or indisposed, take the President’s place in accordance with a procedure laid down by the Administrative Council (Art. 10(3) European Patent Convention). [...]

bb) [...]

cc) [...]

dd) Within the European Patent Organisation, legal protection against decisions of the European Patent Office is provided by the Boards of Appeal and the Enlarged Board of Appeal.

(1) The Boards of Appeal are responsible for examining appeals against decisions of the Receiving Section, the Examining Divisions, the Opposition Divisions and the Legal Division (Art. 21(1) European Patent Convention). The European Patent Convention distinguishes between the Legal Board of Appeal and the Technical Boards of Appeal based on their different remit and composition. Pursuant to Art. 21(1) of the European Patent Convention, the Legal Board of Appeal consists of three legally qualified members and hears appeals against decisions of the Receiving Section or the Legal Division. The Technical Boards of Appeal are responsible for appeals against decisions of an Examining Division or Opposition Division and consist of technically and legally qualified members in accordance with Art. 21(3) and (4) of the European Patent Convention.

(2) Pursuant to Art. 22(1) of the European Patent Convention, the Enlarged Board of Appeal is responsible for deciding on points of law referred to it by the Boards of Appeal under Art. 112 of the European Patent Convention (Art. 22(1)(a) European Patent Convention), giving opinions on points of law referred to it by the President of the European Patent Office under Art. 112 of the European Patent Convention (Art. 22(1)(b) European Patent Convention), and deciding on petitions for review of decisions of the Boards of Appeal under Art. 112a of the European Patent Convention (Art. 22(1)(c) European Patent Convention). With respect to this last subdivision, however, the available review is limited in scope (cf. Art. 112a(2) European Patent Convention). Petitions for review may only be filed on the grounds that a fundamental procedural defect has occurred (Art. 112a(2)(a) to (d) European Patent Convention) or that a criminal act may have had an impact on the challenged decision (Art. 112a(2)(e) European Patent Convention). They are not intended to enable review of the substantive aspects of the decisions issued by the Boards of Appeal, or to comprehensively guarantee the correct application of procedural law in such decisions or the uniform application of the law ([...]).

(3) The members of the Boards of Appeal and the Enlarged Board of Appeal are independent and may not be removed from office during their five-year term, unless there are serious grounds for such removal and the Administrative Council of the European Patent Organisation, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect (Art. 23(1) first sentence, second half-sentence European Patent Convention). However, members may resign or be retired in accordance with the Service Regulations for permanent employees of the European Patent Office (Art. 23(1) second sentence European Patent Convention).

(4) Prior to the structural reform of 2016, the Boards of Appeal and the Enlarged Board of Appeal were part of the European Patent Office’s administration.

(a) The Chairperson of the Presidium of the Boards of Appeal was simultaneously in charge of Directorate-General 3 of the European Patent Office – the Directorate-General which consisted of the Boards of Appeal – and was one of the Vice-Presidents of the European Patent Office (cf. Rule 9 and Rule 12(1) Implementing Regulations 2007). The Chairperson was appointed by the Administrative Council after consultation with the President of the European Patent Office in accordance with Art. 11(2) of the European Patent Convention. [...] The Chairperson supported the President and was subject to the President’s instructions (Art. 10(2) and (3) European Patent Convention). Further details were set out in the Rules of Procedure for the Boards of Appeal, the adoption of which was the responsibility of the Presidium of the Boards of Appeal (Rule 12(3) Implementing Regulations 2007).

As a general rule, the Vice-President responsible for Directorate-General 3 was also appointed as Chairperson of the Enlarged Board of Appeal in accordance with Art. 11(3) of the European Patent Convention. While this was not legally required, it was in line with established practice (cf. EPO Enlarged Board of Appeal, decision of 25 April 2014, R 0019/12, EP:BA:2014:R001912.20140425, para. 14.1).

(b) The members of the Boards of Appeal and the Enlarged Board of Appeal were appointed by the Administrative Council for five-year terms on the proposal of the President (Art. 11(3) first sentence in conjunction with Art. 23(1) first sentence, first half-sentence European Patent Convention). Reappointment was permissible after consulting the President of the European Patent Office (Art. 11(3) second sentence European Patent Convention). Appointees to the Enlarged Board of Appeal could include legally qualified members of the national courts or quasi-judicial authorities of the contracting states, who were allowed to continue performing their original judicial activities (Art. 11(5) first sentence European Patent Convention). The term of office was three years with the possibility of reappointment (Art. 11(5) second sentence European Patent Convention).

(c) Even prior to 2016, disciplinary authority over the members of the Boards of Appeal was exercised by the Administrative Council (Art. 11(4) European Patent Convention). However, the President of the European Patent Office had the power to propose disciplinary action against members of the Boards of Appeal (Art. 10(2)(h) European Patent Convention).

(5) In 2016, the Administrative Council of the European Patent Organisation adopted a new version of the Implementing Regulations, thereby approving a comprehensive reform package aimed at restructuring the appeal system of the European Patent Organisation (cf. OJ EPO 2018, Supplementary publication 1, p. 1 ff.). This came into effect on 1 July 2016.

As a result, the Boards of Appeal and the Enlarged Board of Appeal were grouped into a separate organisational unit – the Boards of Appeal Unit (Rule 12a(1) first sentence Implementing Regulations 2016) – and were no longer integrated into the European Patent Office as Directorate-General 3 (cf. Art. 9 Implementing Regulations 2016). The separate Boards of Appeal Unit is now headed by the President of the Boards of Appeal. The holder of this office – who also serves as the Chairperson of the Enlarged Board of Appeal (Rule 12a(1) second sentence Implementing Regulations 2016) – is independent from the President of the European Patent Office and is accountable only to the Administrative Council (Rule 12a(2) second sentence Implementing Regulations 2016).

The President of the Boards of Appeal is appointed by the Administrative Council on a joint proposal by the President of the European Patent Office and the newly-established Boards of Appeal Committee (Art. 11(3) European Patent Convention in conjunction with Rule 12a(1) third sentence Implementing Regulations 2016). In carrying out their duties, the President of the Boards of Appeal enjoys independence within the parameters set out by the European Patent Convention (Art. 23(3) European Patent Convention).

On 14 February 2017, the President of the European Patent Office delegated their powers under Art. 11(3) and (5) of the European Patent Convention, with the exception of the right of proposal and consultation regarding the appointment or reappointment of the Chairperson of the Enlarged Board of Appeal, to the President of the Boards of Appeal (cf. OJ EPO 2018, A63 <Decision of the President dated 14 February 2017>, Art. 3(c)). The delegated functions and powers included the functions and powers in the area of disciplinary authority under Art. 10(2)(h) of the European Patent Convention (Rule 12a(2) first sentence Implementing Regulations 2016; cf. OJ EPO 2018, A63 <Decision of the President dated 14 February 2017>, Art. 1).

d) According to Art. 164(1) of the European Patent Convention, the Implementing Regulations form an integral part of the Convention, but are subordinate to the Convention in case of conflict (Art. 164(2) European Patent Convention) and may be amended by the Administrative Council (cf. Art. 33(1)(c) European Patent Convention). The Administrative Council has made use of this power on several occasions, most recently in its decisions of 13 December 2017 and 15 December 2020 (cf. OJ EPO 2018, A2; OJ EPO 2020, A132).

Initially, the Presidium of the Boards of Appeal consisted of the Vice-President responsible for the Boards of Appeal as Chairperson, plus twelve members of the Boards of Appeal, six being Chairpersons and six being other members. The Presidium of the Boards of Appeal adopted the Rules of Procedure of the Boards of Appeal and the rules of procedure for the election and designation of its members (Rule 12(1) and (3) first sentence Implementing Regulations 2007). As part of the 2016 structural reform, these provisions were replaced by the newly-created Rules 12a to 12d of the Implementing Regulations 2016 (cf. OJ EPO 2016, A100, p. 1 ff.). The composition of the Presidium is now laid down in Rule 12b(1) of the Implementing Regulations 2016, while the tasks of the Boards of Appeal Committee are set out in Rule 12c of the Implementing Regulations 2016. The Committee consists of six members appointed by the Administrative Council, three of whom are selected from among the delegations of the contracting states within the meaning of Art. 26 of the European Patent Convention, and three of whom are selected from among serving or former judges at international, European or national courts. The Presidium now has a purely advisory role vis-à-vis the Committee (Rule 12b(3)(c) Implementing Regulations 2016).

Rule 124(1) of the Implementing Regulations contains provisions for the drawing up of minutes in oral hearings or when evidence is taken.

e) The Rules of Procedure of the Boards of Appeal of the European Patent Office (RPBA) in the version of 25 October 2007 relevant here (cf. OJ EPO 2007, p. 536 ff.; subsequent amendments were made with effect from 1 January 2020 and 1 April 2021, respectively, cf. OJ EPO 2019, A63, p. 1 ff. and OJ EPO 2021, A19, p. 1 f.) govern the temporary replacement of members of the Boards of Appeal (Art. 2(1) and (2) RPBA), their exclusion from cases and objections to their participation (Art. 3(1) RPBA), changes in the composition of a Board of Appeal (Art. 8(1) second sentence RPBA), the enlargement of a Board of Appeal (Art. 9 RPBA), the consideration of new submissions (Art. 13(1) RPBA), the preparation of oral proceedings (Art. 15(1) RPBA), and deviations from previous decisions of a Board or from Guidelines (Art. 20(1) and (2) RPBA).

Similarly, the Rules of Procedure of the Enlarged Board of Appeal of the European Patent Office (RPEBA) in the version of 25 March 2015 (cf. OJ EPO 2015, A35, p. 1 ff.) govern inter alia the temporary replacement of members of the Board (Art. 3(1) and (2) RPEBA), their exclusion from cases and objections to their participation (Art. 4(1) RPEBA), changes in the composition of the Enlarged Board of Appeal (Art. 7(1) first sentence RPEBA), the consideration of new submissions (Art. 12(1) RPEBA), and the submission of documents before oral proceedings (Art. 14(1) RPEBA).

f) Pursuant to Art. 2(2) of the European Patent Convention, European patents have the effect of and are subject to the same conditions as national patents granted in the respective contracting state, unless otherwise provided for in the European Patent Convention. Once granted, a European unitary patent is subject to the individual national legal systems of the contracting states (Art. 2(2), Art. 139(1) European Patent Convention). The European Patent Office only has jurisdiction for opposition proceedings. Revocation proceedings fall within the jurisdiction of the national courts or authorities. In Germany, pursuant to § 81(4) first sentence of the Patent Act (Patentgesetz – PatG), jurisdiction for revocation proceedings lies with the Federal Patent Court (Bundespatentgericht ). However, pursuant to § 81(2) of the Patent Act, an action for revocation of a patent cannot be filed as long as an opposition is still possible or opposition proceedings are still pending (cf. Decisions of the Federal Court of Justice in Civil Matters, Entscheidungen des Bundesgerichtshofes in Zivilsachen – BGHZ 163, 369 <370 f.>). In Germany, decisions of the Boards of Appeal are treated merely as expert opinions and have no further legal effect (cf. Federal Court of Justice, Bundesgerichtshof – BGH, Judgment of 5 May 1998 - X ZR 57/96 -, juris, para. 41; Order of 15 April 2010 - Xa ZB 10/09 -, juris, para. 14).

2. […]

3. […]

4. […]

5. […]

6. […]

II.

1. With its constitutional complaint of 26 October 2010, the complainant in proceedings I challenges the Technical Board of Appeal’s decision of 28 May 2009 cancelling a European patent from which the complainant had benefitted, as well as the Enlarged Board of Appeal’s decision of 27 September 2010 reviewing and upholding that decision. The complainant asserts a violation of the principle of a fair trial under Art. 2(1) in conjunction with Art. 20(3) of the Basic Law and contends that its fundamental rights under Art. 103(1), Art. 19(4), and Art. 2(1) in conjunction with Art. 24(1) of the Basic Law were violated because the challenged decisions were based on general and manifest deficiencies in the system of legal protection.

[…]

2. The complainant in proceedings II is a legal entity domiciled in Australia, against which insolvency proceedings were initiated under Australian law on 19 December 2018. With its constitutional complaint of 25 February 2013, it challenges the Technical Board of Appeal’s decision of 27 October 2011 revoking European patent No. (01), from which the complainant had benefitted, as well as the Enlarged Board of Appeal’s decision of 17 October 2012 reviewing and upholding that decision.

a) The complainant in proceedings II claims a violation of Art. 103(1), Art. 19(4) and Art. 2(1) in conjunction with Art. 24(1) of the Basic Law, as well as a violation of Art. 2(1) in conjunction with Art. 20(3) of the Basic Law.

b) […]

3. The complainants in proceedings III are a legal entity domiciled in Germany, eight legal entities domiciled in other Member States of the European Union, and four legal entities domiciled in third countries. With their constitutional complaint of 5 April 2013 and their subsequently filed submission of 7 April 2016, they directly challenge the Technical Board of Appeal’s decision of 9 March 2012 rejecting their appeal against a decision of the Opposition Division, which maintained their requested patent protection for European patent no. (02) only on the basis of their auxiliary request and denied patent protection in all other respects. Their constitutional complaint furthermore challenges the Enlarged Board of Appeal’s decision of 15 September 2015 reviewing and upholding that decision.

Indirectly, the complainants in proceedings III also challenge Art. 10(2)(g) and (h), Art. 11(3) and (4), Art. 23(1) and (4), and Art. 112(1) of the European Patent Convention, Rule 12(1) and (3) first sentence and Rule 124(1) of the Implementing Regulations, as well as Art. 2(1) and (2), Art. 3(1), Art. 8(1) second sentence, Art. 9, Art. 13(1), Art. 15(1), Art. 20(1) and (2) of the Rules of Procedure of the Boards of Appeal, and Art. 3(1) and (2), Art. 4(1), Art. 7(1) second sentence, Art. 12(1) and Art. 14(1) of the Rules of Procedure of the Enlarged Board of Appeal.

[…]

4. The complainants in proceedings IV – which are the same as the complainants in proceedings III – lodged a further constitutional complaint on 27 April 2015 challenging the Enlarged Board of Appeal’s decision of 20 March 2015, by which their objection to the Chairperson of the Enlarged Board of Appeal on suspicion of impartiality was rejected.

a) They claim a violation of their procedural fundamental rights under Art. 2(1) in conjunction with Art. 20(3), Art. 19(4) and Art. 101(1) second sentence of the Basic Law, as well as a violation of Art. 14(1) of the Basic Law. […]

b) […]

5. With its constitutional complaint of 27 March 2015, the complainant in proceedings V challenges the Technical Board of Appeal’s decision of 2 October 2014, by which the complainant’s objection to the Chairperson of the Board of Appeal on suspicion of impartiality was rejected. By submission of 25 October 2017, the complainant in proceedings V expanded its constitutional complaint to include the Enlarged Board of Appeal’s decision of 21 November 2016 rejecting the appeal against the decision of 2 October 2014.

By submission of 6 August 2015, the complainant also challenged the Technical Board of Appeal’s decision of 9 March 2015 upholding the Opposition Division’s revocation of its European patent No. (03). By submission of 27 February 2018, the complainant in proceedings V expanded its constitutional complaint to include the Enlarged Board of Appeal’s decision of 29 May 2017, by which the complainant’s petition for review of the Board of Appeal’s substantive decision of 9 March 2015 was rejected.

a) The complainant in proceedings V claims a violation of its fundamental rights under Art. 2(1) in conjunction with Art. 20(2) and (3), Art. 19(4), Art. 101(1) second sentence and Art. 103(1) of the Basic Law. It furthermore claims a violation of Art. 14(1) of the Basic Law, citing arguments in the constitutional complaints lodged by the complainants in proceedings III and IV in this regard.

b) […]

III.

By letter of 11 October 2018, the reporting Justice gave the complainants an opportunity to supplement the applications and submissions they had already lodged, drawing their attention to the Federal Constitutional Court’s decisions of 21 June 2016 - 2 BvR 2728 to 2 BvR 2731/13, 2 BvE 13/13 - (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 142, 123 ff.) and 24 July 2018 - 2 BvR 1961/09 - (BVerfGE 149, 346 ff.).

The complainants in proceedings III and IV responded to this letter by submission of 7 December 2018, the complainant in proceedings V responded by submission of 11 December 2018, and the complainants in proceedings I and II responded by submission of 12 December 2018.

The complainants in proceedings I and II contend that their proceedings are fundamentally different than the circumstances that led to the Second Senate’s decision in the European Schools case (BVerfGE 149, 346 ff.). They point out that their constitutional complaints were substantiated in proper detail and, in terms of subject matter, asserted a violation of criteria established by the Senate. The Senate had ruled that where the statute of an international organisation provides for the creation of an appeal body, this is not sufficient on its own to satisfy the requirements arising from Art. 19(4) of the Basic Law unless the legal protection afforded by that body is guaranteed to be effective. In order for this to be the case, the appeal body must provide individual legal protection, must be independent, and must have a sufficiently high standard of review.

The complainants in proceedings III to V likewise contend that there are fundamental differences between the circumstances that led to the decision of 24 July 2018 in the European Schools case and the subject matter of their own constitutional complaints. They point out that their constitutional complaints were substantiated in proper detail and were directed at a failure to comply with the requirements established by the Senate with regard to effective legal protection.

IV.

The Federal Government, the German Bundestag and the European Patent Office were notified of the constitutional complaints and given the opportunity to submit statements in response.

1. The Federal Government responded with a submission from its authorised representative of 11 December 2019. [...]

[…]

2. The German Bundestag responded with a submission from its authorised representative of 18 November 2019. In a further submission of 23 April 2020, the German Bundestag declared that it was joining the proceedings in accordance with § 94(5) first sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). […]

[…]

3. The European Patent Office responded to the proceedings in a submission of 28 November 2019 […].

[…]

V.

By submission of 20 April 2020, the complainants in proceedings III, IV and V provided observations in reply to these responses. By letter of 28 April 2020, the complainants in proceedings I and II joined this reply.

By submission of 23 April 2020, the German Bundestag waived its right to an oral hearing in accordance with § 94(5) second sentence of the Federal Constitutional Court Act.

B.

The constitutional complaints are inadmissible. The complainants in proceedings II, III.1, III.3, III.6, III.9, IV.1, IV.3, IV.6 and IV.9 are not entitled to invoke the substantive fundamental rights laid down in the Basic Law, including Art. 19(4) thereof (see I. below). Under the given circumstances, none of complainants can assert a violation of Art. 101(1) second sentence or Art. 103(1) of the Basic Law (see II. below). The constitutional complaints furthermore lack an admissible subject matter (see III. below). In any case, the complainants have failed to sufficiently substantiate a possible violation of their fundamental rights (see IV. below).

I.

The constitutional complaints lodged by the complainants in proceedings II, III.1, III.3, III.6, III.9, IV.1, IV.3, IV.6 and IV.9 are inadmissible from the outset because the complainants are not entitled to invoke the substantive fundamental rights laid down in the Basic Law. These complainants are legal entities whose domicile is not located in Germany or any other Member State of the European Union. Pursuant to Art. 19(3) of the Basic Law, fundamental rights only apply to domestic legal persons insofar as the nature of such rights permits. In principle, foreign legal entities domiciled in third countries cannot invoke the fundamental rights of the Basic Law (cf. BVerfGE 21, 207 <209>; 100, 313 <364>) (see 1. below). The above-mentioned complainants in proceedings II, III.1, III.3, III.6, III.9, IV.1, IV.3, IV.6 and IV.9 are foreign legal entities (see 2. below).

1. The wording and purpose of Art. 19(3) of the Basic Law preclude an expansive interpretation that would allow the Basic Law’s substantive fundamental rights to be extended to foreign legal entities (cf. BVerfGE 21, 207 <209>; 100, 313 <364>; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 27 June 2018 - 2 BvR 1287/17, 2 BvR 1583/17 -, para. 27). This also applies to the right to effective legal protection under Art. 19(4) of the Basic Law (cf. Federal Constitutional Court, Order of the First Chamber of the Second Senate of 8 February 2006 - 2 BvR 575/05 -, para. 12; Order of the Second Chamber of the Second Senate of 22 February 2019 - 2 BvR 2203/18 -, para. 20; Order of the Second Chamber of the Second Senate of 23 September 2021 - 2 BvR 1144/21 -, para. 15; left open in BVerfGE 61, 82 <109>; 107, 299 <310 f.>; […]), considering that this right’s scope of protection, in terms of its enforceability, partly corresponds with that of substantive fundamental rights (cf. BVerfGE 35, 348 <361>; 37, 132 <141, 148>; 39, 276 <294>; 44, 105 <119 ff.>; 45, 297 <333>; 45, 422 <430 ff.>; 46, 325 <334>; 49, 220 <225>; 49, 252 <257>; 51, 324 <346 ff.>; 56, 216 <236, 242>). If the protection afforded under Art. 19(4) of the Basic Law were extended to foreign legal entities, then Art. 19(3) of the Basic Law would be largely circumvented.

Legal entities qualify as domestic in the state where they are domiciled (so-called “domicile theory”); the nationality of the natural persons behind the entity is irrelevant (cf. BVerfGE 21, 207 <208 f.>; 23, 229 <236>). Domicile is generally determined according to where the main focus of an entity’s activity is actually located. If the entity is active in different locations with operations extending over several states, its domicile is determined – subject to the possibilities arising from the freedom of establishment under Art. 49 of the Treaty on the Functioning of the European Union (TFEU) (cf. BVerfGE 143, 246 <317 para. 196 f.>) – by the location of its actual headquarters ([...]). [...]

Legal entities domiciled in another EU Member State constitute an exception in this regard. They qualify as holders of the Basic Law’s fundamental rights if there is a sufficient link to Germany that makes it appear necessary to apply fundamental rights under the Basic Law in the same way as they apply to domestic German legal entities (cf. BVerfGE 129, 78 <97 ff.>; 143, 246 <315 ff. para. 192 ff.>; […]). By contrast, the same does not apply to foreign legal entities domiciled in third countries. Furthermore, the European Convention on Human Rights (ECHR) cannot be interpreted as enabling foreign legal entities to invoke the Basic Law’s fundamental rights and to lodge constitutional complaints (cf. BVerfGE 153, 182 <256 para. 189> – Assisted suicide ).

2. The complainants in proceedings II, III.1, III.3, III.6, III.9, IV.1, IV.3, IV.6 and IV.9 cannot assert violations of substantive fundamental rights – Art. 2(1), Art. 14(1) and Art. 19(4) of the Basic Law in particular.

The complainant in proceedings II is domiciled in Australia, the complainants in proceedings III.1 and IV.1 are domiciled in the United States, the complainant in proceedings III.4 and IV.3 is domiciled in the United Kingdom, and the complainants in proceedings III.6, IV.6, III.9 and IV.9 are domiciled in Switzerland. They are not domestic legal entities within the meaning of Art. 19(3) of the Basic Law and therefore are not afforded protection by the fundamental rights of the Basic Law.

This also applies to the complainants in proceedings III.3 and IV.3 domiciled in the United Kingdom. It is true that the United Kingdom did not leave the European Union until 31 January 2020, i.e. after the constitutional complaint was lodged. However, constitutional complaints are in principle only admissible if they still meet the admissibility requirements at the time when the decision is pronounced (cf. Federal Constitutional Court, Order of the Second Chamber of the First Senate of 30 May 2012 - 1 BvR 2292/11 -, para. 10; [...]). A different conclusion does not result from the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Withdrawal Agreement, cf. OJ EU C 384 of 12 November 2019, p. I/1). The more expansive interpretation of Art. 19(3) of the Basic Law that applies in the EU context is linked to the EU’s integration agenda (Integrationsprogramm ) and its non-discrimination clauses – in particular, the freedom of establishment under Art. 49 of the Treaty on the Functioning of the European Union. But after Brexit, this no longer applies to legal entities domiciled in the United Kingdom. Insofar as the Withdrawal Agreement provides for exceptions (cf. Art. 9 ff. of the Withdrawal Agreement), these apply to natural persons and not to corporations or joint stock companies (cf. Art. 25 of the Withdrawal Agreement).

The same applies to the complainants in proceedings III.6, IV.6, III.9 and IV.9 that are domiciled in Switzerland. [...]

[…]

II.

In the present case, none of the complainants can assert a violation of Art. 101(1) second sentence or Art. 103(1) of the Basic Law because they do not claim that these procedural fundamental rights were violated by German courts.

1. It is true that the procedural fundamental rights contained in Art. 101(1) second sentence and Art. 103(1) of the Basic Law afford protection to anyone who is a party or is directly affected by court proceedings (cf. BVerfGE 21, 362 <373>; 61, 82 <104>; 63, 332 <337>). Thus, irrespective of Art. 19(3) of the Basic Law, the procedural fundamental rights also apply in principle to foreign legal entities, to legal entities under public law, to the Federation, the Länder and the municipalities, and even to foreign states that are parties to proceedings before German courts (cf. Federal Constitutional Court, Order of the First Chamber of the Second Senate of 16 October 2013 - 2 BvR 736/13 -, para. 9; Order of the First Chamber of the Second Senate of 17 March 2014 - 2 BvR 736/13 -, para. 17).

However, the right to one’s lawful judge (Art. 101(1) second sentence of the Basic Law) and the right to be heard (Art. 103(1) of the Basic Law) are specific manifestations of the broader principle of the right to a fair trial (Art. 20(3) of the Basic Law) and, as such, are only applicable to the German judicial system. Thus, within the meaning of Art. 92 of the Basic Law, a violation of such rights can only take place in German courts (cf. BVerfGE 101, 397 <404>; 122, 190 <198 f.>; […]). These rights are not binding on international or supranational organisations, their courts and tribunals. ([...]) The manner in which proceedings are conducted before such bodies cannot, therefore, be reviewed against the standards of Art. 101(1) and Art. 103(1) of the Basic Law.

2. The complainants do not therefore have standing to assert a violation of Art. 101(1) second sentence or Art. 103(1) of the Basic Law. Rather than objecting to a violation of these procedural fundamental rights by a German court, they assert a violation of these rights by the Boards of Appeal and the Enlarged Board of Appeal of the European Patent Office. Such violations are ruled out from the outset.

III.

Furthermore, the constitutional complaints lack an admissible subject matter because the Federal Constitutional Court only reviews the acts of non-German public authorities to the extent that these provide the basis for measures taken by German authorities or trigger obligations incumbent upon German constitutional organs (see 1. below). The constitutional complaints do not satisfy these requirements (see 2. below).

1. Acts of supranational organisations under Art. 24(1) of the Basic Law are not acts of a public authority that may be challenged by means of a constitutional complaint pursuant to Art. 93(1) no. 4a of the Basic Law and § 90(1) of the Federal Constitutional Court Act. It follows that they cannot be the direct subject matter of a constitutional complaint (see a) below). However, to the extent that such supranational organisations adopt legal acts, the Federal Constitutional Court’s review may consider the domestic act approving the transfer of sovereign powers and also whether the organs of the supranational organisation subsequently violated the minimum standard of fundamental rights protection required by the Basic Law. The Federal Constitutional Court may also consider whether German constitutional organs – by tolerating such acts – failed to fulfil their duty to ensure that these minimum standards are upheld, rendering the acts inapplicable in Germany (see b) below).

a) According to the now established case-law of the Second Senate of the Federal Constitutional Court, acts of institutions, bodies, offices and agencies of the European Union cannot be directly challenged by means of a constitutional complaint (cf. BVerfGE 142, 123 <179 f. para. 97 ff.>; 151, 202 <283 f. para. 112> – European Banking Union ; 154, 17 <81 f. para. 89> – PSPP asset purchase programme of the ECB ). However, such acts may be reviewed by the Federal Constitutional Court – as a preliminary question – if the claim can be made that these acts exceed the scope of the European Union’s integration agenda, that they affect the minimum standard of fundamental rights protection that the legislator is obliged to guarantee also with regard to the European Union, and that German constitutional organs are required to take steps against such acts due to their responsibility with regard to European integration (Integrationsverantwortung ) (cf. BVerfGE 142, 123 <179 f. para. 97 ff.>; 151, 202 <279 para. 101> – European Banking Union ; 154, 17 <81 f. para. 89> – PSPP asset purchase programme of the ECB ).

The Second Senate has yet to expressly clarify whether these standards, which were developed in respect of the European Union, are also applicable to the acts of supranational organisations within the meaning of Art. 24(1) of the Basic Law. In the Senate’s earlier Chamber decisions ([...]) and parts of legal scholarship, it is considered admissible for the sovereign acts of supranational organisations to be directly challenged by constitutional complaint ([...]). But since the Second Senate’s judgment of 21 June 2016 (BVerfGE 142, 123 <179>), there has been an increasing tendency to reject the possibility of using constitutional complaints to directly challenge the sovereign acts of supranational organisations ([...]). This is the preferable approach, as the legal protection provided in this context by the Federal Constitutional Court under Art. 24(1) of the Basic Law cannot be treated any differently than the legal protection provided under Art. 23(1) of the Basic Law.

This view is supported by the structural similarity of the two provisions. Art. 23(1) second sentence of the Basic Law is a specialised provision governing the transfer of sovereign powers to the European Union. It adopts the model of Art. 24(1) of the Basic Law, retains that provision’s mode of operation and its mechanisms, and has further developed them in view of the higher level of integration involved. This also applies to the respective limitations of the two provisions, because Art. 23(1) third sentence of the Basic Law is essentially a codification of the standards developed for Art. 24(1) of the Basic Law (cf. BVerfGE 37, 271 <279 f.>; 73, 339 <375 f.>). Against this backdrop, the Second Senate has repeatedly affirmed the continuing validity of the Solange doctrine in connection with Art. 23(1) of the Basic Law (cf. BVerfGE 102, 147 <162 ff.>; 118, 79 <95>; 129, 186 <199>; 140, 317 <334 para. 34, 337 para. 43>; 152, 216 <235 para. 47> – Right to be forgotten II ; 158, 1 <24 f. para. 39> – Ecotoxicity data ).

Another indication that Art. 23(1) and Art. 24(1) of the Basic Law are subject to the same standards regarding the admissible subject matter for a complaint is the fact that the Federal Constitutional Court cannot reverse the acts of supranational organisations any more than it can reverse the acts of institutions, bodies, offices and agencies of the European Union. This is due to the immunity normally granted to such organisations in the treaties that establish them (cf. on this concept in general: BVerfGE 149, 346 <367 para. 44>; [...]).

b) To the extent that supranational organisations within the meaning of Art. 24(1) of the Basic Law adopt legal acts, the Federal Constitutional Court’s review may not only consider the domestic act approving the transfer of sovereign powers, but also whether the organs of the supranational organisation subsequently violated the minimum standard of fundamental rights protection required by the Basic Law. The Federal Constitutional Court may also consider whether German constitutional organs, within the scope of their competences, properly fulfilled their duty to ensure that these minimum standards are upheld. Thus – just like Art. 23(1) of the Basic Law – Art. 24(1) of the Basic Law in conjunction with Art. 1(3), Art. 19(2), Art. 79(3) and Art. 93(1) confers upon the Federal Constitutional Court an indirect power of review under certain conditions (cf. BVerfGE 134, 366 <387 f. para. 30>; 142, 123 <207 para. 162>; 154, 17 <151 para. 234> – PSPP asset purchase programme of the ECB ).

2. Against this backdrop, the constitutional complaints lodged by the complainants in proceedings I, II, III.2, III.4 and 5, III.7 and 8, III.10 to 13, IV.2, IV.4 and 5, IV.7 and 8, IV.10 to 13 and V are inadmissible because they lack admissible subject matter. Although the reporting Justice, in a letter of 11 October 2018, notified the complainants that the Second Senate’s Chamber case-law allowing decisions of the European Patent Office to be directly challenged by constitutional complaint had possibly been superseded by the Senate’s judgment of 21 June 2016 (BVerfGE 142, 123 <179 f. para. 97 ff.>) and its order of 24 July 2018 in the European Schools case (BVerfGE 149, 346 <366 f. para. 43 f.>), the complainants persisted in directly challenging the decisions of the Technical Boards of Appeal and the Enlarged Board of Appeal of the European Patent Office by way of constitutional complaint. They did not consider adjusting their constitutional complaints to assert instead that the treaties governing the European Patent Office’s appeal system and the practical implementation thereof might entail a violation of the duty incumbent upon the Federal Government and the Bundestag to ensure that the Basic Law’s minimum standards for effective legal protection are upheld.

The same applies to the complainants’ submission of 20 April 2020, in which they argue that the German act of approval to the European Patent Convention – despite not being explicitly mentioned in the constitutional complaints – was clearly challenged by the complaints and was part of their subject matter from the outset. In the complainants’ view, it was obvious that the domestic act transposing the European Patent Convention into national law – as the act giving effect to the Convention while also constituting its substantive content – was a central part of the subject matter and was (indirectly) challenged by the constitutional complaints. However, they offer no further explanation as to which provisions of the European Patent Convention violate which standards of the Basic Law, and whether the complaints merely challenge the European Patent Convention in its original version of 5 October 1973, as amended by the Act revising the European Patent Convention of 29 November 2000, or whether they also challenge specific manifestations of the Convention in the structures and practices of the organs of the European Patent Office.

IV.

Furthermore, the complainants in proceedings I, III.2, III.4 and 5, III.7 and 8, III.10 to 13, IV.2, IV.4 and 5, IV.7 and 8, IV.10 to 13 and V did not sufficiently substantiate their claim that the minimum standard of effective legal protection required under Art. 19(4) of the Basic Law (see 1. below) is not met by the European Patent Office’s appeal system (see 2. below) and that German constitutional organs are therefore currently obliged to take steps in response.

1. When sovereign powers are transferred to supranational organisations under Art. 24(1) of the Basic Law (see a) below), German constitutional organs are obliged to ensure that the essence (Wesensgehalt ) of fundamental rights – that is, the minimum standard of fundamental rights protection required by the Basic Law – is guaranteed not only when these organisations are established but also when they subsequently implement their European integration agenda (see b) below). In view of Art. 19(4) of the Basic Law, effective legal protection must also be guaranteed (see c) below).

a) Art. 24(1) of the Basic Law opens the domestic legal order, allowing laws from other sources to become directly effective and applicable within the Federal Republic of Germany’s sphere of control, without requiring any act of implementation or enforcement by German authorities (cf. BVerfGE 37, 271 <279 f.>; 149, 346 <361 para. 29>). When the legislator transfers sovereign powers to a supranational organisation, it simultaneously enables the (fundamental) rights of its citizens to be restricted. In principle, the extent to which this occurs is determined by the domestic act that approves the respective international treaty (cf. BVerfGE 123, 267 <402>; 142, 123 <186 para. 115>; 149, 346 <361 para. 29>; 151, 202 <275 ff. para. 92 ff., 325 para. 204> – European Banking Union ).

Against this backdrop, the legislator may only transfer sovereign powers to a supranational organisation if that organisation provides rule-of-law guarantees that adequately protect fundamental rights (cf. BVerfGE 123, 267 <415 f.>; 152, 216 <233 f. para. 42 ff., 238 para. 54> – Right to be forgotten II ; 153, 74 <160 f. para. 157> – Unified Patent Court ). German constitutional organs are obliged, within the scope of their competences, to ensure that this level of fundamental rights protection is upheld (cf. BVerfGE 149, 346 <362 para. 31>).

b) As acts of German public authority, domestic acts of approval that transfer sovereign powers under Art. 24(1) of the Basic Law are bound by the Basic Law’s fundamental rights and must generally ensure that the essence of these fundamental rights is protected (Art. 19(2) of the Basic Law) when public authority is exercised by supranational organisations (cf. BVerfGE 37, 271 <280 ff.>; 58, 1 <40>; 73, 339 <387>; 89, 155 <174 f.>; 102, 147 <164>; 118, 79 <95>; 123, 267 <334>; 126, 286 <302>; 133, 277 <316 para. 91>; 140, 317 <337 para. 43>; 149, 346 <361 f. para. 30>). This requirement applies not only to the (initial) transfer of sovereign powers to a supranational organisation, but also to the organisation’s subsequent implementation of its European integration agenda (cf. BVerfGE 149, 346 <362 para. 32>; with regard to the European Union cf. BVerfGE 123, 267 <353, 364 f., 389 f., 391 f., 413 f., 419 f.>; 134, 366 <395 f. para. 49, 397 para. 53>; 142, 123 <211 para. 170>). In any case, this requirement is an expression of the fact that fundamental rights impose duties of protection on German constitutional organs (see aa) below), obliging them not only to monitor how the European integration agenda is implemented in the particular case, but also to take appropriate remedial action in the event that the essence of fundamental rights is affected (see bb) below). If the acts of a supranational organisation only violate the organisation’s mandate and the applicable constitutional limits in isolated cases, this is not sufficient to render the domestic act of approval void (see cc) below).

aa) Fundamental rights, apart from being rights of the individual against the state, also contain objective decisions on constitutional values that oblige the state and its organs to safeguard and defend the integrity of protected interests arising from fundamental rights in cases where individuals are unable to ensure that integrity on their own (cf. BVerfGE 92, 26 <46>; 115, 118 <152 f.>; 125, 39 <78>; 142, 123 <209 para. 166>; 151, 202 <297 para. 142> – European Banking Union ; 154, 17 <89 f. para. 108 f.> – PSPP asset purchase programme of the ECB ). In principle, the competent German constitutional organs decide autonomously how to fulfil their resulting duties of protection (cf. BVerfGE 66, 39 <61>; 77, 170 <214>; 79, 174 <202>; 85, 191 <212>; 92, 26 <47>; 96, 56 <64>; 125, 39 <78>; 133, 59 <75 f. para. 45>; 142, 123 <210 f. para. 168 f.>; 157, 30 <114 para. 152> – Climate Change ). They have a broad margin of appreciation, assessment and manoeuvre in this regard (cf. BVerfGE 125, 39 <78>; 142, 123 <210 f. para. 169>; 151, 202 <299 para. 148> – European Banking Union ; 154, 17 <89 para. 109> – PSPP asset purchase programme of the ECB ; 157, 1 <23 para. 71 f.> – CETA Organstreit proceedings I ; 158, 89 <122 para. 90> – Order of execution relating to the ECB’s asset purchase programme PSPP ). This broad margin is available to them not only in cases where conflicting fundamental rights have to be considered (cf. BVerfGE 96, 56 <64>; 142, 123 <210 f. para. 169>), but also in foreign and European policy where, in principle, it falls within their discretion and responsibility to decide which measures to take. They must consider the existing risks and take political responsibility for their decisions (cf. BVerfGE 4, 157 <168 f.>; 40, 141 <178>; 53, 164 <182>; 55, 349 <365>; 66, 39 <60 f.>; 68, 1 <97>; 84, 90 <128>; 94, 12 <35>; 95, 39 <46>; 121, 135 <158, 168 f.>; 142, 123 <210 f. para. 169>; 151, 202 <299 para. 148> – European Banking Union ; 157, 1 <23 para. 71 f.> – CETA Organstreit proceedings I ). The same applies, in principle, to the question of how they can best fulfil their duties of protection arising from fundamental rights when dealing with non-German public authority (cf. BVerfGE 142, 123 <210 f. para. 169> with further references).

Such duties of protection are only violated if no action is taken whatsoever, if the laws enacted and measures taken are evidently unsuitable or completely inadequate, or if they fall considerably short of the aim of protection (cf. BVerfGE 77, 170 <214 f.>; 85, 191 <212>; 88, 203 <254 f.>; 92, 26 <46>; 125, 39 <78 f.>; 142, 123 <210 f. para. 169>; 142, 313 <337 f. para. 70>; 151, 202 <299 para. 148> – European Banking Union ; 157, 1 <23 f. para. 73> – CETA Organstreit proceedings I ; 157, 30 <114 para. 152> – Climate Change ). Nonetheless, this amounts to a prohibition of insufficient state action (Untermaßverbot ), which individual holders of fundamental rights may invoke against the competent constitutional organs, based on the fundamental rights affected in each case (cf. BVerfGE 88, 203 <204>; 109, 190 <247>; 157, 30 <111 para. 145, 114 para. 152> – Climate Change ).

bb) Given that German constitutional organs are responsible for ensuring compliance with the international treaties governing supranational organisations, and the fundamental rights protection guaranteed therein, they are obliged, within the scope of their competences, to continuously monitor how said supranational organisations execute their European integration agenda (Integrationsprogramm ). If German constitutional organs ascertain that the fundamental rights protection guaranteed by a supranational organisation falls short of the level required under Art. 19(2) of the Basic Law, they are obliged to take steps towards eliminating the gap in protection (cf. BVerfGE 149, 346 <362 marginal no. 31>) and, if necessary, to amend the treaties governing the supranational organisation.

German constitutional organs are also obliged, where necessary, to actively defend the required minimum standard of protection in cases where fundamental rights are affected by the supranational organisation and its organs. They must in principle use any legal or political means available to them, within the scope of their competences, to rescind acts that are not covered by the treaties and – as long as these acts continue to have effect – take suitable measures that restrict the domestic effects of such acts to the greatest possible extent (cf. BVerfGE 123, 267 <353, 364 f., 389 ff., 413 f., 419 f.>; 134, 366 <395 f. para. 49, 397 para. 53>; 142, 123 <211 para. 170>; 149, 346 <362 para. 31>; 151, 202 <301 f. para. 154> – European Banking Union ; 153, 74 <133 para. 96> – Unified Patent Court ; 154, 17 <89 f. para. 108 f., 93 f. para. 114 f.> – PSPP asset purchase programme of the ECB ). The nature and scope of these obligations to take action – obligations induced by fundamental rights – depend on the specific circumstances, in particular the statute of the supranational organisation concerned.

cc) If the acts of a supranational organisation only violate the organisation’s mandate and the applicable constitutional limits in isolated cases, this is not sufficient to render the domestic act of approval void. However, failure on the part of the supranational organisation or its organs to uphold the minimum standard of fundamental rights protection required by the Basic Law can mean that the domestic act of approval to the international treaty governing the organisation is subsequently rendered unconstitutional on account of structural deficits in implementation. This can be assumed to be the case if the unconstitutional practical implementation stems from the domestic act of approval itself, reflecting a structural regulatory deficit (cf. BVerfGE 73, 339 <372>; 133, 168 <233 f. para. 118>). Changes in the underlying conditions can also subsequently render a law unconstitutional (cf. BVerfGE 132, 334 <358 para. 67>; 143, 216 <245 para. 71>; 149, 346 <362 para. 32>) and/or place the legislator under obligation to remedy the situation (cf. BVerfGE 130, 263 <302>; 132, 334 <358 para. 67>; 133, 168 <233 f. para. 118>; 143, 216 <245 para. 71>). Domestic acts of approval are subject to the generally applicable rules in this respect. But if the violations of the supranational organisation’s mandate are confined to the incorrect application of treaty provisions in a specific case, this does not undermine the validity of the domestic act of approval.

c) When transferring judicial powers to supranational organisations under Art. 24(1) of the Basic Law, the legislator deciding on European integration matters is obliged, within the framework of Art. 19(4) of the Basic Law, to ensure that effective legal protection is available to persons affected by the acts of the supranational organisation in question.

The guarantee of effective legal protection under Art. 19(4) of the Basic Law and the duty to provide access to justice under Art. 2(1) in conjunction with Art. 20(3) of the Basic Law continue to apply when sovereign powers are transferred to supranational organisations. This means that access to a judicial decision on the merits of a case may not under any circumstances be prevented, rendered practically impossible or made unreasonably difficult in a manner that cannot be justified by factual reasons (cf. BVerfGE 10, 264 <268>; 30, 1 <23 ff.>; 44, 302 <305>; 143, 216 <225 f. para. 21>). Individuals are constitutionally entitled to have access to justice in line with these requirements (cf. BVerfGE 60, 253 <269>; 77, 275 <284>; 143, 216 <225 f. para. 21>; 149, 346 <363 para. 33 f.>).

Since the right to one’s lawful judge (Art. 101(1) second sentence of the Basic Law) and the right to be heard (Art. 103(1) of the Basic Law) are indispensable elements of any proceedings under the rule of law (cf. BVerfGE 38, 105 <111 ff.>; 46, 202 <209 f.>; 55, 1 <5 f.>; 60, 253 <304>; 78, 123 <126>; 107, 395 <408 f.>; 138, 64 <86 para. 67>), the legislator deciding on European integration matters is obliged to ensure that the mechanisms for allocating jurisdiction and for guaranteeing the right to be heard continue to satisfy the required minimum standards when judicial powers are transferred to supranational organisations under Art. 24(1) of the Basic Law.

The legal protection afforded by a supranational organisation and its organs only satisfies these requirements (cf. BVerfGE 73, 339 <376>; 149, 346 <363 para. 33 ff.>) if the organisation provides for legal recourse against its own acts of sovereign authority (see aa) below), if the review is carried out by an independent adjudicating body with sufficient jurisdiction (see bb) below), if the adjudicating body reaches its decisions on the basis of appropriate proceedings in which the right to be heard is ensured, if these decisions impose effective sanctions for violations of rights, if appropriate means of challenge and defence are provided, and if possibilities are granted to freely choose competent legal counsel (see cc) below). The question of whether effective legal protection is available in line with these requirements must be decided on the basis of an overall assessment (see dd) below).

aa) In the first instance, the guarantee of effective legal protection gives rise to minimum standards regarding the conditions under which legal recourse is available. If an act of a supranational organisation or its organs has potentially violated a right, it must be subject to judicial review on points of fact and law. This means that access to a judicial decision on the merits of a case may not under any circumstances be prevented, rendered practically impossible or made unreasonably difficult in a manner that cannot be justified by factual reasons (cf. BVerfGE 149, 346 <363 para. 34>).

It is sufficient here if provision is made for the sovereign acts of a supranational organisation to be reviewed on points of fact and law using a single-tier appeal system. It is not mandatory for first-instance decisions to be reviewed on points of law by a second tier of appeal. Neither Art. 19(4) nor Art. 20(3) of the Basic Law guarantee multiple levels of review (cf. BVerfGE 4, 74 <94 f.>; 11, 232 <233>; 28, 21 <36>; 40, 272 <274>; 49, 329 <343>; 83, 24 <31>; 87, 48 <61>; 92, 365 <410>; 96, 27 <39>; 107, 395 <402>; 118, 212 <239 f.>; 152, 345 <378 para. 87> – Removal from public service by administrative act ). If the treaty governing the supranational organisation provides for a second tier of appeal, it is permissible for this second tier to be limited to extraordinary legal remedies and points of law. In deciding on international treaties and matters of European integration, the legislator has broad discretion – as it does in the domestic legal sphere – in terms of how appeal systems are designed (cf. BVerfGE 149, 346 <365 para. 39>).

These standards are consistent with the provisions of the European Convention on Human Rights and the EU Charter of Fundamental Rights, which must be taken into consideration when interpreting Art. 19(4) of the Basic Law (cf. BVerfGE 158, 1 <36 f. para. 69 ff.> – Ecotoxicity data ). Nothing in the European Convention on Human Rights establishes an obligation to set up a two-tier system of appeal (cf. European Court of Human Rights (ECtHR), A.M. v. Netherlands , Judgment of 5 July 2016, no. 29094/09, § 70; ECtHR, Delcourt v. Belgium , Judgment of 17 January 1970, no. 2689/65, § 25>; [...]). Pursuant to Art. 47 of the Charter, access to a court or tribunal is sufficient, a second level of jurisdiction is not required (cf. CJEU, Judgment of 17 July 2014, Juan Carlos Sánchez Morcillo and María del Carmen Abril García v Banco Bilbao Vizcaya Argentaria SA , C-169/14, EU:C:2014:2099, para. 36; Judgment of 28 July 2011, Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration , C-69/10, EU:C:2011:524, para. 69; Judgment of 11 March 2015, Europäische Schule München v Silvana Oberto and Barbara O´Leary , C-464/13 inter alia, EU:C:2015:163, para. 73).

bb) The guarantee of effective legal protection additionally requires that appeals be reviewed by an independent adjudicating body that has sufficient jurisdiction, appropriate to the legal protection sought, to review and decide points of fact and law. One aspect of this – according to the essentially unanimous case-law of the Federal Constitutional Court, the European Court of Human Rights and the Court of Justice of the European Union – is the independence of the decision-makers themselves. Adjudicating bodies must be institutionally separate from the administrative entities whose legal acts they are called upon to review (see (1) below), and the substantive and personal independence of the judges must be guaranteed (see (2) below). Supranational organisations may be subject to special requirements (see (3) below).

(1) Judicial independence is an expression of the separation of powers. It is one of the structural principles shaping the constitutional order ([...]) and is among the key principles that guides judicial authority under the Basic Law (cf. BVerfGE 103, 111 <140>; 133, 168 <202 f. para. 62>; 139, 64 <135 para. 155>; established case-law). In this respect, the independence of judges called upon to adjudicate is part of the essence of Art. 19(4) of the Basic Law.

(a) Pursuant to Art. 20(2) second sentence and Art. 92 of the Basic Law, judicial independence requires that the judicial and executive branches be institutionally separate (cf. BVerfGE 4, 331 <345 f.>; 14, 56 <67 f.>; 18, 241 <254>; 26, 186 <197>; 27, 312 <321>; 54, 159 <171 f.>; 103, 111 <139 f.>). Judges may not participate in deciding on a legal act if they were involved in the act at some earlier stage – for example having worked on it as a civil servant bound by instructions (cf. BVerfGE 4, 331 <347>; 18, 241 <254>). On the other hand, a judge’s prior involvement in areas purely concerned with judicial administration is unobjectionable (cf. BVerfGE 4, 331 <347>) since the courts themselves do not decide on legal acts in this context. The legal recourse available from administrative authorities (so-called administrative adjudication) does not constitute legal recourse to the courts within the meaning of Art. 19(4) of the Basic Law (cf. BVerfGE 148, 69 <88 f. para. 51>).

(b) Pursuant to Art. 6(1) first sentence of the European Convention on Human Rights, civil and criminal proceedings must be heard before an institutionally and organisationally independent and impartial tribunal established by law. These tribunals must be independent of the executive (cf. ECtHR, Astradsson v. Iceland , Judgment of 1 December 2020, no. 26374/18, § 219). On this basis, judges have structural protection against improper external influence (cf. ECtHR, Piersack v. Belgium , Judgment of 1 October 1982, no. 8692/79, § 27). It must also be ensured that judges do not take part in the proceedings if, due to some advisory function in the legislative or executive branch, they were already involved a case they are later called upon to adjudicate (cf. ECtHR, McGonnell v. United Kingdom , Judgment of 8 February 2000, no. 28488/95, § 51 ff.). For example, the European Court of Human Rights has questioned the impartiality of a court because some of the judges involved in the court’s decision had previously given legal advice to the administration on the matter (cf. ECtHR, Procola v. Luxembourg , Judgment of 28 September 1995, no. 14570/89, § 45 – “structural impartiality”; Kleyn and Others v. Netherlands , Judgment of 6 May 2003, nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 196 ff.). When assessing the question of institutional independence, consideration must be given to the functions exercised by the adjudicating body and its internal organisation. Even appearances may be of significance (cf. ECtHR, De Cubber v. Belgium , Judgment of 26 October 1984, no. 9186/80, § 26; Belilos v. Switzerland , Judgment of 29 April 1988, no. 10328/83, § 67). If judges are embedded within the hierarchy of an administration whose actions they are called upon to adjudicate, those subject to their jurisdiction might assume that the judges’ loyalties rest with their colleagues. This could undermine the confidence which must be inspired by the courts in a democratic society (cf. ECtHR, Belilos v. Switzerland , Judgment of 29 April 1988, no. 10328/83, § 67).

(c) Judicial independence is likewise of fundamental importance for the legal order of the European Union (cf. CJEU, Judgment of 9 July 2020, VQ v. Land Hessen , C-272/19, EU:C:2020:535, para. 45). It is essential for the proper working of the system of judicial cooperation, given that the preliminary ruling mechanism under Article 267 of the Treaty on the Functioning of the European Union can only be activated by a body responsible for applying EU law which satisfies, inter alia, the criterion of independence. In addition, the case-law of the Court of Justice regards independence as part of the essence of the fundamental right to effective judicial protection and a fair trial enshrined in Art. 47 of the Charter (cf. CJEU, Judgment of 24 June 2019, European Commission v Republic of Poland , C-619/18, EU:C:2019:531, para. 58; Judgment of 19 November 2019, A. K. and Others v Sąd Najwyższy, CP v Sąd Najwyższy and DO v Sąd Najwyższy , C-585/18 inter alia, EU:C:2019:982, para. 120; Judgment of 20 April 2021, Repubblika v Il-Prim Ministru , C-896/19, EU:C:2021:311, para. 51; Judgment of 6 October 2021, Proceedings brought by W.Ż. , C-487/19, EU:C:2021:798, para. 108; Judgment of 16 November 2021, Criminal proceedings against WB and Others , C-748/19 inter alia, EU:C:2021:931, para. 66). In accordance with the principle of the separation of powers which characterises the operation of the rule of law, the independence of the judiciary must be ensured vis-à-vis the legislative and executive branches (cf. CJEU, Judgment of 20 April 2021, Repubblika v Il-Prim Ministru , C-896/19, EU:C:2021:311, para. 54 with reference to the Judgment of 19 November 2019, A. K. and Others v Sąd Najwyższy, CP v Sąd Najwyższy and DO v Sąd Najwyższy , C-585/18 inter alia, EU:C:2019:982, para. 124, as well as the Judgment of 2 March 2021, A.B. and Others v Krajowa Rada Sądownictwa and Others , C-824/18, EU:C:2021:153, para. 118). In this respect, the Court of Justice has even classified the Federal Supervisory Board (Vergabeüberwachungsausschuss des Bundes ) as a court or tribunal within the meaning of Art. 267 of the Treaty on the Functioning of the European Union (cf. CJEU, Judgment of 17 September 1997, Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH , C-54/96, EU:C:1997:413, para. 22 ff.) because it is wholly autonomous in exercising its functions, it is not subordinate to any other body, and it does not take orders or instructions from any source whatsoever (cf. also CJEU, Judgment of 17 July 2014, Angelo Alberto Torresi and Pierfrancesco Torresi v Consiglio dell’Ordine degli Avvocati di Macerata , C-58/13 inter alia, EU:C:2014:2088, para. 22).

In order for effective legal protection to be guaranteed, the Court of Justice requires a fair trial that is independent of the executive branch (cf. CJEU, Judgment of 11 January 2000, Kingdom of the Netherlands and Gerard van der Wal v Commission of the European Communities , C-174/98 P inter alia, EU:C:2000:1, para. 17). In this context, the Court of Justice has evaluated the independence of a court in terms of whether it is shielded from external intervention or pressure capable of jeopardising the independent judgment of its members (cf. CJEU, Judgment of 19 September 2006, Graham J. Wilson v Ordre des avocats du barreau de Luxembourg , C-506/04, EU:C:2006:587, para. 51; Judgment of 9 October 2014, TDC A/S gegen Erhvervsstyrelse , C-222/13, EU:C:2014:2265, para. 30; Judgment of 6 October 2015, Consorci Sanitari del Maresme v Corporació de Salut del Maresme i la Selva , C-203/14, EU:C:2015:664, para. 19; Judgment of 16 February 2017, Ramón Margarit Panicello v Pilar Hernández Martínez , C-503/15, EU:C:2017:126, para. 37; Judgment of 14 June 2017, Online Games Handels GmbH and Others v Landespolizeidirektion Oberösterreich , C-685/15, EU:C:2017:452, para. 60 f.; Judgment of 27 February 2018, Associação Sindical dos Juízes Portugueses v Tribunal de Contas , C-64/16, EU:C:2018:117, para. 44 f.; Judgment of 24 June 2019, European Commission v Republic of Poland , C-619/18, EU:C:2019:531, para. 72; Judgment of 5 November 2019, European Commission v Republic of Poland , C-192/18, EU:C:2019:924, para. 109).

(2) Judicial independence also requires independence of a substantive and personal nature. This is necessary to ensure that effective legal protection is guaranteed both in accordance with Art. 19(4) of the Basic Law and within the framework of the general right of access to justice, which, in turn, is an essential part of the principle of the rule of law (cf. BVerfGE 107, 395 <401>; 148, 69 <89 para. 53>).

(a) The substantive judicial independence guaranteed under Art. 97(1) of the Basic Law is intended to ensure that courts base their decisions on law and justice alone. It also serves to strengthen confidence in the objectivity and neutrality of the courts among those seeking justice and among the public (cf. BVerfGE 107, 395 <402 f.>; 148, 69 <90 para. 56>). It essentially means that judges are bound only by the law, i.e. they are not required to follow instructions (cf. BVerfGE 14, 56 <69>; 26, 186 <198>; 27, 312 <319>; 148, 69 <91 f. para. 57>). It furthermore means that the executive branch is, in principle, prohibited from exerting any other kind of influence on the substantive aspects of judicial decision-making. This includes influence of an indirect, subtle or psychological nature. Any influence (or authorisation to exert influence) by the executive that is not necessary for maintaining the proper functioning of the courts is thus to be avoided (cf. BVerfGE 26, 79 <93 f.>; 55, 372 <389>; 148, 69 <90 f. para. 57>).

By contrast, it is not constitutionally objectionable for the executive to be involved in the appointment of judges or even to have decision-making powers in this respect – powers which are limited by Art. 33(2) of the Basic Law. For example, pursuant to Art. 95(2) of the Basic Law, the competent Federal Minister enjoys a kind of conditional power to veto the appointment of federal judges elected by the Judicial Selection Committee (cf. BVerfGE 143, 22 <34 f. para. 32, 36 f. para. 35>; […]).

Art. 97(2) of the Basic Law sets out institutional safeguards to protect the personal independence of judges (cf. BVerfGE 4, 331 <344>; 14, 56 <69>; 26, 186 <198>; 42, 206 <209>; 87, 68 <85>). A minimum requirement here is that, prior to the expiry of their term of office, judges may only be dismissed under the conditions specified by law and may only be dismissed involuntarily by virtue of judicial decision (cf. BVerfGE 14, 56 <70>; 26, 186 <198 f.>; 38, 139 <151>; 42, 206 <209 f.>). […]

(b) Within the framework of the European Convention on Human Rights, it is recognised that judges must be irremovable and must remain in office for a certain minimum period, with a term of three years considered appropriate for judges who serve without remuneration (cf. ECtHR, Campbell and Others v. United Kingdom , Judgment of 28 June 1984, nos. 7819/77, 7878/77, § 78 ff.). To ensure independence and impartiality, the selection process must satisfy special requirements, having regard to the legal qualifications of the applicants and preventing undue influence from being exerted by other branches of government – the executive in particular (cf. ECtHR, Astradsson v. Iceland , Judgment of 1 December 2020, no. 26374/18, § 219 f., 232).

(c) The Court of Justice of the European Union regards judicial independence as requiring guarantees against removal from office, and remuneration commensurate with the importance of the functions performed (cf. CJEU, Judgment of 25 July 2018, Minister for Justice and Equality , C-216/18 PPU, EU:C:2018:586, para. 64). In addition, rules are considered to be essential – particularly with regard to the composition of the body and the appointment of its members, their length of service and the grounds for their abstention, rejection and dismissal – such that any reasonable doubt is dispelled as to the imperviousness of that body to external factors and its neutrality with respect to the conflicting interests before it (cf. CJEU, Judgment of 20 April 2021, Repubblika gegen Il-Prim Ministru , C-896/19, EU:C:2021:311, para. 53; Judgment of 6 October 2021, Proceedings brought by W.Ż. , C-487/19, EU:C:2021:798, para. 109). These conditions are only met if the circumstances under which members of the body may be dismissed are determined by express legislative provisions (cf. CJEU, Judgment of 9 October 2014, TDC A/S v Erhvervsstyrelse , C-222/13, EU:C:2014:2265, para 32; Judgment of 25 July 2018, Minister for Justice and Equality , C-216/18 PPU, EU:C:2018:586, para 66). Irremovability means that judges may remain in office until they have reached the mandatory retirement age or until their term of office, if subject to a time limit, has expired. While the principle of irremovability does not apply unconditionally, exceptions are only permissible if they are justified by legitimate and compelling reasons and the principle of proportionality is observed (cf. CJEU, Judgment of 24 June 2019, European Commission v Republic of Poland , C-619/18, EU:C:2019:531, para. 76).

The dismissal of judges is permissible in the event of incapacity or serious misconduct. However, a disciplinary regime for judges only satisfies the requirements of judicial independence under Art. 19(2) subpara. 3 of the Treaty on European Union (TEU) if it includes the safeguards necessary to prevent any risk of it being used as a system to politically control the content of judicial decisions (cf. CJEU, Judgment of 25 July 2018, Minister for Justice and Equality , C-216/18 PPU, EU:C:2018:586, para 67; Judgment of 24 June 2019, European Commission v Republic of Poland , C-619/18, EU:C:2019:531, para 77; Judgment of 5 November 2019, European Commission v Republic of Poland , C-192/18, EU:C:2019:924, para 114). This would require rules that define the conduct constituting a disciplinary offence and the specific penalties applicable, provide for the involvement of an independent body in accordance with a procedure that fully safeguards the rights enshrined in Arts. 47 and 48 of the Charter, and lay down the possibility of bringing legal proceedings to challenge the disciplinary bodies’ decisions (cf. CJEU, Judgment of 18 May 2021, Asociaţia “Forumul Judecătorilor din România” and Others v. Inspecţia Judiciară and Others , C-83/19 inter alia, EU:C:2021:393, para. 198; Judgment of 6 October 2021, Proceedings brought by W.Ż. , C-487/19, EU:C:2021:798, para. 113).

(d) The constitutions of a number of other EU Member States likewise include specific provisions requiring that legal protection be available from independent and impartial courts. For example, Art. 87(1) of the Austrian Constitution requires that judges be “independent in the exercise of their judicial office”. Similar provisions can be found in Art. 151(1) of the Belgian Constitution, Art. 117(1) of the Spanish Constitution, Art. 87(1) of the Greek Constitution, Art. 45(1) and Art. 173 of the Polish Constitution, and Art. 203 of the Portuguese Constitution. Pursuant to Art. 104(1) of the Italian Constitution, the “judiciary is a branch that is autonomous and independent of all other powers”. Pursuant to Art. 64(1) of the French Constitution, the President of the Republic is the guarantor of the independence of the judicial authority (cf. EPO Enlarged Board of Appeal, interlocutory decision of 25 April 2014, R 0019/12, EP:BA:2014:R001912.20140425, para. 9; [...]).

(3) However, the requirements of Art. 97 and Art. 20(3) of the Basic Law are not identical to the core functional elements of judicial independence and, given the differences in how judicial independence is structured at the European and national levels, cannot be taken as defining the minimum standard of effective legal protection that the legislator is obliged to guarantee when transferring judicial powers to supranational organisations within the meaning of Art. 24(1) of the Basic Law. Indeed, the Federal Constitutional Court has ruled that the requirements under Art. 97(1) of the Basic Law cannot be simply uprooted from the German context and applied to the appeal systems of supranational organisations (cf. BVerfGE 73, 339 <376>). In this respect, it is permissible for international and supranational tribunals to deviate from the standards of Art. 97 of the Basic Law in terms of the institutional separation of executive and judicial functions, as long as individual legal protection is provided by independent bodies (cf. BVerfGE 149, 346 <364 para. 37> with reference to BVerfGE 59, 63 <91>; 73, 339 <376>). Deviations are also possible with regard to judicial terms of office and the legal status of judges (cf. BVerfGE 158, 210 <235 f. para. 60> – Unified Patent Court II – Preliminary injunction ). At international and European tribunals, judicial appointments for a fixed term are the norm and terms are often renewable. At the level of the European Union, both Art. 253(1) second half-sentence and Art. 253(4) of the Treaty on the Functioning of the European Union – for the Court of Justice – and Art. 254(2) second and fourth sentence of the same Treaty – for the General Court – limit the judicial term to six years while allowing judges to be re-appointed ([...]). By contrast, judges at the European Court of Human Rights are elected for a nine-year term, although since Protocol No. 14 to the Convention officially entered into force on 1 June 2010 (cf. BGBl II p. 1198 ff.), re-election has been expressly ruled out by Art. 23(1) second sentence of the European Convention on Human Rights (cf. BVerfGE 158, 210 <235 f. para. 60> – Unified Patent Court II – Preliminary injunction ).

cc) Effective legal protection also requires a minimum standard of procedural fairness (cf. BVerfGE 60, 253 <304>; CJEU, Judgment of 5 November 2014, Sophie Mukarubega v Préfet de police and Préfet de la Seine-Saint-Denis , C-166/13, EU:C:2014:2336, para. 42 f.; Judgment of 11 December 2014, Khaled Boudjlida v Préfet des Pyrénées-Atlantiques , C-249/13, EU:C:2014:2431, para. 36 ff.; [...]), which particularly includes the right to be heard (cf. BVerfGE 59, 280 <283 ff.>; 63, 332 <338>). Apart from being one of the traditional cornerstones of individual procedural rights, the right to be heard is also an objective procedural standard and – according to the decisions on constitutional values enshrined in the Basic Law (cf. BVerfGE 55, 1 <6>; 107, 395 <408 f.>), Art. 6(1) of the European Convention on Human Rights and Art. 47(2) of the Charter – is a constitutive element of rule-of-law proceedings (cf. BVerfGE 107, 395 <408 f.>) (see (1) below). In addition, Art. 2(1) in conjunction with Art. 20(3) of the Basic Law gives rise to the right to a fair trial (see (2) below).

(1) The right to be heard, which is guaranteed before German courts by the specific provision of Art. 103(1) of the Basic Law (cf. BVerfGE 9, 89 <95 f.; 18, 399 <405>; 60, 1 <5>; 67, 208 <211>; 74, 1 <5>; 89, 28 <36>), is an essential aspect of the guarantee of effective legal protection under Art. 19(4) of the Basic Law and of the duty to provide access to justice under Art. 2(1) in conjunction with Art. 20(3) of the Basic Law (cf. BVerfGE 81, 123 <129>; 101, 106 <129>). Whereas the guarantee of effective legal protection ensures that individuals have recourse to the courts, the right to be heard ensures that the actual proceedings before German courts are properly conducted (cf. BVerfGE 101, 397 <404>; 107, 395 <409>; 122, 190 <198 f.>). Art. 103(1) of the Basic Law guarantees that the parties are given an opportunity to present their case in court proceedings, enabling them to comment on the facts and the legal situation (cf. BVerfGE 60, 175 <210>; 89, 28 <35>; 107, 395 <409>), to file motions and to make submissions. However, it does not guarantee that the proceedings conform to any particular format (cf. BVerfGE 6, 19 <20>; 15, 303 <307>; 36, 85 <87>; 67, 39 <41>; 89, 381 <392>; 101, 106 <129>). Art. 103(1) of the Basic Law furthermore serves to prohibit surprise decisions. The provision does not place the courts under any general obligation to ask questions or establish facts (cf. BVerfGE 84, 188 <190>; Federal Constitutional Court, Order of the Third Chamber of the First Senate of 25 April 2015 - 1 BvR 2314/12 -, para. 20), nor does it require that the courts give an indication as to their legal view prior to issuing a decision. Nevertheless, if a court, without prior notification, were to impose requirements on submissions or base its decision on legal aspects that a conscientious and well-informed party could not reasonably be expected to anticipate in light of the prior course of the proceedings – even after taking the possible range of legal views into consideration – it would be tantamount to preventing submissions from the parties (cf. BVerfGE 74, 1 <6>; 84, 188 <190>; 86, 133 <144>; 96, 189 <204>; 108, 341 <345 ff.>).

(2) Furthermore, Art. 2(1) in conjunction with Art. 20(3) of the Basic Law guarantees the right to a fair trial as a general manifestation of the principle of the rule of law. Judges may not be contradictory in their actions, they may not allow their own errors and omissions – or errors and omissions for which they are accountable – to result in procedural disadvantages for the parties, and they must comply with the general obligation to give consideration to the parties in their specific situation (cf. BVerfGE 38, 105 <111 ff.>; 40, 95 <98 f.>; 46, 202 <210>; 69, 381 <387>; 78, 123 <126>).

(a) However, the statutory design of court procedure does not violate the standards of Art. 2(1) in conjunction with Art. 20(3) of the Basic Law unless an overall assessment of the entire procedural framework – including the way in which procedural law is interpreted and applied by the courts – shows that the legislator has failed to draw imperative rule-of-law conclusions or has omitted mandatory rule-of-law procedural elements (cf. BVerfGE 57, 250 <275 f.>; 63, 45 <61>; 70, 297 <308 f.>; 78, 123 <126>; 86, 288 <317 f.>; 122, 248 <272>). The principle of the rule of law does not, in principle, give rise to any detailed procedural requirements on the design of court procedure other than the requirement that rule-of law standards be upheld in terms of effective legal protection and access to justice (cf. BVerfGE 60, 253 <298>; 77, 170 <229 f.>). For example, the taking of minutes in oral hearings is of varying importance in different types of proceedings, its significance depending on how it is embedded within other procedural rules. The guarantee of effective legal protection furthermore requires that decisions be reasoned if the applicable rules of procedure make access to a further instance of appeal contingent upon reasons being given. But under German law, there is no constitutional obligation to provide reasons when issuing decisions that conclude the appeal process and for which no further ordinary appeal is available (cf. BVerfGE 50, 287 <289 f.>; 94, 166 <210>). Insofar as reasons are required, they must be provided within a reasonable time period. In this respect, the obligation to provide timely legal protection applies to the entire proceedings, i.e. until the final decision becomes legally binding. Judgments that can still be admissibly challenged by an appeal or a legal remedy with suspensive effect must be delivered promptly enough to ensure that the right to timely legal protection is observed. What this means in specific terms depends on the circumstances of the individual case (cf. BVerfGE 55, 349 <369>).

(b) The right to a fair trial is also enshrined in Art. 6(1) of the European Convention on Human Rights. Apart from guaranteeing access to a neutral and objective tribunal, Art. 6(1) of the European Convention on Human Rights sets out a number of basic procedural requirements. The design of court procedure must exhibit the basic elements of fairness (“fair trial”; cf. ECtHR, Artico v. Italy , Judgment of 13 May 1980, no. 6694/74, § 32 f.; […]). The essential purpose here is to prevent the parties in court proceedings from being reduced to mere objects, ensuring instead that they have appropriate participation rights (“equality of arms”) such as rights to comment and to present their own evidence (cf. ECtHR, Brandstetter v. Austria , Judgment of 28 August 1991, no. 11170/84, § 41 ff.; Dombo Beheer B.V. v. Netherlands , Judgment of 27 October 1993, no. 14448/88, § 33; Vermeulen v. Belgium , Judgment of 20 February 1996, no. 19075/91, §§ 28, 34; […]). Art. 6(1) of the European Convention on Human Rights also gives rise to a right to inspect the files (cf. ECtHR, Brandstetter v. Austria , Judgment of 28 August 1991, no. 11170/84, § 67; […]). Lastly, the European Court of Human Rights has held that parties entitled to submit observations to the court on items of evidence must be given a real opportunity to comment effectively on that evidence in order for the proceedings to reach the standard of fairness required by Art. 6(1) of the European Convention on Human Rights. Judicial review of this point is particularly necessary in cases where the evidence pertains to a technical field of which the judges have no knowledge and the evidence is likely to have a decisive influence on the court’s assessment of the facts (cf. ECtHR, Mantonavelli v. France , Judgment of 18 March 1997, no. 21497/93, § 36).

While courts are required under Art. 6 of the European Convention on Human Rights to take note of, examine and assess submissions and evidence, they are not obliged to consider the entirety of the submissions filed by the parties. Rather, they are only required to address the main arguments submitted (cf. ECtHR, van de Hurk v. Netherlands , Judgment of 19 April 1994, no. 16034/90, § 59; Goktepe v. Belgium , Judgment of 2 June 2005, no. 50372/99, § 25; Buzesku v. Romania , Judgment of 24 May 2005, no. 61302/00, § 67). As regards the obligations of courts to provide notification, the European Court of Human Rights does not set any additional requirements beyond the standard contained in Art. 103(1) of the Basic Law (cf. ECtHR, Clinique des Acacias and Others v. France , Judgment of 13 October 2005, no. 65399/01 inter alia, § 37 f.). The court must reach a final and sufficiently reasoned decision (cf. ECtHR, Jafarli v. Azerbaijan , Judgment of 29 July 2010, no. 36079/06, §§ 52, 61). Pursuant to Art. 6(1) of the European Convention on Human Rights, judicial proceedings must be completed within a reasonable time, always to be assessed in light of the circumstances of the individual case (cf. ECtHR, Uhl v. Germany , Judgment of 10 February 2005, no. 64387/01, § 27 ff.; [...]). Judgments must include written reasons, as this ensures the proper administration of justice, prevents arbitrariness and helps strengthen the confidence of the public and the persons concerned in the decision reached (cf. ECtHR, Cerovšek and Others v. Slovenia , Judgment of 7 March 2017, no. 68939/12 inter alia, § 40; [...]).

(c) As a general principle, the right to a fair trial in EU law draws inspiration from the constitutional traditions common to the Member States (cf. CJEU, Judgment of 2 Mai 2006, Eurofood IFSC Ltd , C-341/04, EU:C:2006:281, para. 65; Judgment of 25 January 2007, Salzgitter Mannesmann GmbH v Commission of the European Communities , C-411/04 P, EU:C:2007:54, para. 40 f.; Judgment of 6 September 2012, Trade Agency Ltd v Seramico Investments Ltd , C-619/10, EU:C:2012:531, para. 52). It is enshrined in Art. 47(2) of the Charter ([…]), which affords a level of protection at least equivalent to Art. 6(1) of the European Convention on Human Rights (cf. Art. 52(3) of the Charter; BVerfGE 140, 317 <361 f. para. 98> with reference to: Explanations relating to the Charter of Fundamental Rights , OJ EU C 303 of 14 December 2007, p. 17 <30>). The right to a fair trial gives rise, in the first instance, to the principle of equality of arms ([...]). Parties and defendants must be given an adequate and proper opportunity to present their case and refute unfavourable allegations in judicial proceedings, for example by adducing evidence (cf. CJEU, Judgment 28 June 2005, Dansk Rørindustri A/S and Others v Commission of the European Communities , C-189/02 P inter alia, EU:C:2005:408, para. 71 f.; Judgment of 6 November 2012, Europese Gemeenschap v Otis NV and Others , C-199/11, EU:C:2012:684, para. 71; Judgment of 19 December 2013, Siemens AG and Others v European Commission , C-239/11 P inter alia, EU:C:2013:866, para. 324 f.; Judgment of 16 February 2017, H&R ChemPharm GmbH v European Commission , C-95/15 P, EU:C:2017:125, para. 45). The right to a fair trial furthermore gives rise to a right to be heard, which again guarantees that parties are heard in judicial proceedings and can present their comments on unfavourable allegations made against them (cf. CJEU, Judgment of 13 February 1979, Hoffmann-La Roche & Co. AG v Commission of the European Communities , C-85/76, EU:C:1979:36, para. 9; Judgment of 10 April 2003, Joachim Steffensen , C-276/01, EU:C:2003:228, para. 77). The court must take note of these comments and – if they are relevant – must consider them when reaching its decision (cf. CJEU, Judgment of 10 December 1998, Aloys Schröder, Jan Thamann and Karl-Julius Thamann v Commission of the European Communities , C-221/97 P, EU:C:1998:597, para. 24). The parties must be aware of the matters of fact and law which will determine the outcome of the proceedings (cf. CJEU, Judgment of 21 February 2013, Banif Plus Bank Zrt v Csaba Csipai und Viktória Csipai , C-472/11, EU:C:2013:88, para. 30 f.). EU law does not contain any farther-reaching obligations for courts to provide notification.

The Court of Justice also derives from Art. 47(2) of the Charter the right to have proceedings conducted within a reasonable period of time (cf. CJEU, Judgment of 17 December 1998, Baustahlgewebe GmbH v Commission of the European Communities , C-185/95 P, EU:C:1998:608, para. 20 f.). Lastly, all judicial decisions must be reasoned so that the defendant can see why judgment has been pronounced against them and can bring an appropriate and effective appeal (cf. CJEU, Judgment of 6 September 2012, Trade Agency Ltd v Seramico Investments Ltd , C-619/10, EU:C:2012:531, para. 53). Minimum requirements with regard to the taking of minutes in court hearings are nowhere to be found. Even the Court of Justice’s own rules of procedure simply require that minutes be taken, without specifying any details in this respect (Art. 33 of the Statute of the Court of Justice of the European Union).

(d) Requirements for court procedure are also contained in the constitutional orders of numerous Member States. These requirements include the principles of fairness and equality of arms ([...]). Direct reference is frequently made to Art. 6(1) of the European Convention on Human Rights ([...]), not least in Austria, where the European Convention on Human Rights ranks on the same level as constitutional law ([...]).

dd) These common European requirements must be taken into consideration when designing the appeal systems of supranational organisations within the meaning of Art. 24(1) of the Basic Law. In order to determine whether an appeal system meets the minimum standards of effective legal protection with regard to the right to be heard and the right to a fair trial, an overall assessment of that system is necessary (cf. CJEU, Judgment of 15 July 2021, European Commission v. Republic of Poland , C-791/19, EU:C:2021:596, para. 110 ff.).

2. Against this backdrop, the complainants in proceedings I, III.2, III.4 and 5, III.7 and 8, III.10 to 13, IV.2, IV.4 and 5, IV.7 and 8, IV.10 to 13 and V have not sufficiently substantiated their claim that the Technical Boards of Appeal and the Enlarged Board of Appeal fail to provide the minimum standard of effective legal protection in accordance with Art. 19(2) and (4) of the Basic Law – even after the structural reform of 2016. To the extent that the complainants object to the institutional positioning of the Technical Boards of Appeal and the Enlarged Board of Appeal within the European Patent Organisation’s system of appeal and the associated shortcomings in terms of the substantive and personal independence of the members, there are some arguments to suggest that this minimum standard was not met prior to the structural reform of 2016. However, these shortcomings were largely rectified by the 2016 structural reform (see a) below). The constitutional complaints are also insufficiently substantiated insofar as they contend that effective legal protection was lacking within the framework of the European Patent Office due to a failure to properly grant the right to be heard and a failure to guarantee the right to a fair trial (see b) below).

a) The requirements with regard to the institutional separation of administrative and judicial functions have become more stringent in the past few decades, especially in the case-law of the European Court of Human Rights, and also to some extent in the more recent case-law of the Court of Justice of the European Union. This must be taken into account when determining the minimum standard of effective legal protection required by Art. 19(2) and (4) of the Basic Law, which is to be determined in light of the European Convention on Human Rights and the Charter of Fundamental Rights (cf. BVerfGE 111, 307 <322 f.>; 128, 326 <369 f.>; 158, 1 <36 f. para. 69 ff.> – Ecotoxicity data ). German constitutional organs are obliged to ensure that this minimum standard is upheld within the framework of the European Patent Organisation and, if necessary, to bring about an amendment to the European Patent Convention.

aa) Over the last 30 years, the European Court of Human Rights has increasingly objected to institutional overlaps between the executive and the judiciary, especially in the Member States that follow the Conseil d’État model (see para. 143 above). From the turn of the millennium onwards, a tightening of the requirements for the institutional separation of executive and judicial functions can also be observed in the case-law of the Court of Justice, primarily on the basis of Art. 19(1) subpara. 2 of the Treaty on European Union and Art. 47 of the Charter. The Court of Justice regards judicial independence as requiring that the body in question be wholly autonomous in exercising its judicial functions, without being hierarchically linked or subordinate to any other entity and without taking orders or instructions from any other source. In this manner, the body must be protected from external intervention or pressure that is capable of jeopardising the independent judgment of its members and influencing their decisions (see para. 145 above).

bb) In principle, Art. 23 of the European Patent Convention guarantees the independence of the members of the Boards of Appeal and the Enlarged Board of Appeal, reinforcing this guarantee with further safeguards. For example, members may not be removed from office during the five-year term of their appointment unless there are serious grounds for such removal and the Administrative Council of the European Patent Organisation, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect (Art. 23(1) first sentence, second half-sentence European Patent Convention). In addition, the members are not bound in their decisions by any instructions and must comply only with the provisions of the European Patent Convention (Art. 23(3) European Patent Convention).

(1) It nevertheless appears questionable whether the rules in force prior to the 2016 structural reform satisfied the requirements with regard to the substantive and personal independence of the members of the Boards of Appeal and the Enlarged Board of Appeal. For example, pursuant to Art. 15 of the European Patent Convention in conjunction with Rule 9 and Rule 12(1) of the Implementing Regulations 2007, the person responsible for the Boards of Appeal – the Vice-President of Directorate-General 3 – was also Chairperson of the Presidium of the Boards of Appeal and, by separate appointment, Chairperson of the Enlarged Board of Appeal. As a Vice-President, they were part of the European Patent Office’s administration pursuant to Art. 10(3) first sentence of the European Patent Convention, without representing the European Patent Office externally. In accordance with Art. 10(2) and (3) of the European Patent Convention, they were obliged to support the President of the European Patent Office and were subject to the President’s instructions. Moreover, as Chairperson of the Presidium of the Boards of Appeal, they were involved in adopting the Rules of Procedure of the Boards of Appeal (Rule 12(3) Implementing Regulations 2007). Since they also served as Chairperson of the Enlarged Board of Appeal, the position combined executive and judicial tasks. While this result was not mandatory under the Implementing Regulations 2007, it was standard practice.

(2) Pursuant to Art. 10(2)(h) of the European Patent Convention, the President of the European Patent Office furthermore has the power to propose disciplinary action against members of the Boards of Appeal and the Enlarged Board of Appeal. In actuality, disciplinary authority over the appointed members of the Boards of Appeal and the Enlarged Board of Appeal lies with the Administrative Council of the European Patent Organisation (Art. 11(4) European Patent Convention). Yet it is not inconceivable – and has often been criticised in practice – that the President’s right of proposal could have a psychological impact on the members of the Boards of Appeal and the Enlarged Board of Appeal, encouraging them to decide procedural or substantive matters in certain directions. In addition, the members of the Boards of Appeal and the Enlarged Board of Appeal – including the Chairpersons – are appointed for five-year terms by the Administrative Council of the European Patent Organisation on a proposal from the President of the European Patent Office (Art. 11(3) first sentence in conjunction with Art. 23(1) first sentence, first half-sentence European Patent Convention). Although the final decision rests with the Administrative Council, appointments are not possible without the candidates first being actively proposed by the President of the European Patent Office. Another problematic aspect is the President’s involvement in the reappointment of members of the Boards of Appeal. Pursuant to Art. 11(3) second sentence of the European Patent Convention, reappointment is possible when the five-year term of office ends. While this decision lies with the Administrative Council pursuant to Art. 11(3) second sentence of the European Patent Convention, the Administrative Council must consult the President of the European Patent Office on the matter. Lastly, under Art. 112(1)(b) of the European Patent Convention, the President of the European Patent Office has the right to refer a point of law to the Enlarged Board of Appeal where two Boards of Appeal have given divergent decisions on that question. Pursuant to Art. 20(1) second sentence of the Rules of Procedure of the Boards of Appeal 2007, the President also had to be informed if a Board of Appeal diverged from an interpretation or explanation of the European Patent Convention given in an earlier decision of any Board, unless such grounds were in accordance with an earlier decision or opinion of the Enlarged Board of Appeal (Art. 20(1) first sentence Rules of Procedure of the Boards of Appeal 2007).

(3) From an assessment of the overall situation, it is clear that various factors threatened the independence of the members of the Technical Boards of Appeal. This conclusion is reinforced by the fact that the members of the Boards of Appeal and the Enlarged Board of Appeal are appointed for short terms of office. Five-year terms (Art. 23(1) first sentence European Patent Convention) are at the lower end of what is usual at international tribunals. It is less than the six-year term limit at the Court of Justice and the General Court of the European Union (Art. 253(1) second half-sentence, Art. 253(4), Art. 254(2) second and fourth sentence Treaty on the Functioning of the European Union) and is far shorter than the nine-year term of office enjoyed by judges at the European Court of Human Rights (Art. 23(1) first sentence European Convention on Human Rights). Furthermore, the Federal Constitutional Court has held that limited terms of office can amount to an unconstitutional restriction of judicial independence in cases where civil servants are appointed as temporary judges before subsequently returning to their original post in the executive branch (cf. BVerfGE 148, 69 <121 para. 128 f., 126 f. para. 140 ff., 129 f. para. 148>). This also applies to international tribunals (cf. BVerfGE 158, 210 <235 f. para. 60> – Unified Patent Court II – Preliminary injunction ).

cc) The structural reform of the European Patent Office that came into force on 1 July 2016 separated administrative from judicial tasks, granting a high degree of institutional autonomy to the judicial functions performed by the Boards of Appeal (cf. OJ EPO 2018, Supplementary publication 1, p. 1 ff.). As a result, the aforementioned shortcomings – which are not dealt with in any detail by the complainants in proceedings I, III.2, III.4 and 5, III.7 and 8, III.10 to 13, IV.2, IV.4 and 5, IV.7 and 8, IV.10 to 13 and V – were essentially rectified, at least to the extent that the framework no longer falls short of the minimum standard, based on an assessment of the overall situation.

For example, Rule 9 of the Implementing Regulations 2007 was repealed, thereby ending the integration of the Boards of Appeal within Directorate-General 3 of the European Patent Office. Furthermore, Vice-Presidents of the European Patent Office are no longer appointed to simultaneously act as Chairperson of the Enlarged Board of Appeal ([...]). The Boards of Appeal and the associated registries and support services are now grouped together into a separate organisational unit – the Boards of Appeal Unit – under the direction of the President of the Boards of Appeal (Rule 12a(1) first sentence Implementing Regulations 2016). The President of the Boards of Appeal is independent of the President of the European Patent Office and is solely accountable to the Administrative Council of the European Patent Organisation (cf. Rule 12a Implementing Regulations 2016). The function of the President of the Boards of Appeal is carried out by the Chairperson of the Enlarged Board of Appeal (Rule 12a(1) second sentence Implementing Regulations 2016), who is no longer part of the European Patent Office’s administration.

As part of the structural reform, the President of the European Patent Office issued a decision on 14 February 2017 delegating the functions and powers laid down in Art. 10(2)(a), (e), (f) and (h), Art. 11(3) and (5), and Art. 48(1) of the European Patent Convention to the President of the Boards of Appeal with effect from 1 March 2017, insofar as these functions and powers concern the Boards of Appeal Unit and its staff, including its members and Chairpersons (cf. OJ EPO 2018, A63 <Decision of the President dated 14 February 2017>, Art. 1; OJ EPO 2017, A19). As a result, the right to propose the members and Chairpersons of the Boards of Appeal and the members of the Enlarged Board of Appeal for appointment and the right to be consulted on their reappointment in accordance with Art. 11(3) of the European Patent Convention is now exercised by the President of the Boards of Appeal. The President of the Boards of Appeal now also exercises supervisory authority over the staff pursuant to Art. 10(2)(f) of the European Patent Convention and has the power, pursuant to Art. 10(2)(h) of said Convention, to propose disciplinary action against the members and Chairpersons of the Boards of Appeal and the members of the Enlarged Board of Appeal (Rule 12a(2) first sentence Implementing Regulations 2016).

It is true that the powers delegated by the President of the European Patent Office to the President of the Boards of Appeal did not include the right of proposal and consultation on the appointment or reappointment of the Chairperson of the Enlarged Board of Appeal (cf. OJ EPO 2018, A63 <Decision of the President dated 14 February 2017>, Art. 3(c)), because the position of Chairperson of the Enlarged Board of Appeal is held by the same person as the President of the Boards of Appeal. However, according to Rule 12a(1) third sentence of the Implementing Regulations 2016 which, pursuant to Art. 164(1) of the European Patent Convention, is an integral part of the European Patent Convention, this right of proposal is jointly held by the President of the European Patent Office together with the Board of Appeal Committee established under Rule 12c of the Implementing Regulations 2016. While this delegation did not result from an amendment to the European Patent Convention, having instead been effected by the President of the European Patent Office on the basis of Art. 10(2)(i) of the European Patent Convention, it is nonetheless presupposed in Rule 12a(2) first sentence and Rule 12d(2) of the Implementing Regulations 2016 and is effective without further approval from the Administrative Council of the European Patent Organisation. Transferring the functions and powers back [to the President of the European Patent Office], as envisaged under Art. 4 of the decision 14 February 2017 as a last resort in exceptional circumstances (cf. OJ EPO 2018, A63 <Decision of the President dated 14 February 2017>, Art. 4; OJ EPO 2017, A19; [...]), would nevertheless be impermissible. [...] Transferring the functions and powers back would violate [...] Rule 12a(2) first sentence and Rule 12d(2) of the Implementing Regulations 2016.

b) Lastly, the constitutional complaints lodged by the complainants in proceedings I, III.2, III.4 and 5, III.7 and 8, III.10 to 13, IV.2, IV.4 and 5, IV.7 and 8, IV.10 to 13 and V are insufficiently substantiated insofar as they contend that effective legal protection was lacking within the framework of the European Patent Office due to a failure to properly grant the right to be heard and a failure to guarantee the right to a fair trial. Without any further explanation, the complainants invoke the constitutional requirements that apply to the German judicial system, failing to recognise that when judicial powers are transferred, Art. 19(4) of the Basic Law does not guarantee an entirely identical standard of effective legal protection, but only guarantees a minimum standard. The complainants have not demonstrated any failure to uphold this minimum standard, nor is it otherwise apparent.

Art. 24(1) of the European Patent Convention prohibits members of the Enlarged Board of Appeal from taking part in proceedings if they participated in the decision under appeal. It is true that the Convention does not envisage the complete organisational separation of the Boards of Appeal and the Enlarged Board of Appeal. However, this is unnecessary to guarantee the impartiality of members of the Boards of Appeal when deciding specific legal disputes (cf. Federal Court of Justice, Order of 13 November 2008 - IX ZB 231/07 -, juris, para. 10), given that confidence in the independence of the judiciary is a protected legal interest as illustrated by § 18(1) no. 2 of the Federal Constitutional Court Act, § 42(2) of the Code of Civil Procedure (Zivilprozessordnung – ZPO) and other similar provisions (cf. BVerfGE 30, 149 <155>; 78, 331 <337 f.>; [...]).

The same applies to the obligations of the Boards of Appeal and the Enlarged Board of Appeal to provide notification. Art. 113(1) of the European Patent Convention explicitly provides that decisions of the European Patent Office may only be based on grounds on which the parties concerned have had an opportunity to present their comments. Review proceedings under Art. 112a of the European Patent Convention [...] are frequently concerned with violations of the right to be heard. The Enlarged Board of Appeal has built up detailed case-law in this area ([...]). In cases where the right to be heard guaranteed under Art. 113(1) of the European Patent Convention is fundamentally violated, the Enlarged Board of Appeal may reverse decisions of the Boards of Appeal within the scope of review proceedings (Art. 112a(2)(c) European Patent Convention). This should be sufficient to ensure that the right to be heard is guaranteed, at least in essence ([...]).

As regards the taking of minutes in oral hearings and the applicable requirements, Art. 19(4) of the Basic Law does not give rise to any minimum standard. § 25a first sentence of the Federal Constitutional Court Act simply requires that written minutes be taken of oral hearings before the Federal Constitutional Court, without making any further specifications. Art. 33 of the Statute of the Court of Justice of the European Union does not contain any specific rules on the content of the minutes either. While Rule 70 of the Rules of Court of the European Court of Human Rights does contain more detailed provisions and lays down a number of requirements in this respect, it leaves their application to the discretion of the respective President of the Chamber. Art. 117 of the European Patent Convention and the associated Rule 124 of the Implementing Regulations do not fall short of these requirements. Pursuant to these provisions, oral hearings and evidence-taking must be documented by the taking of minutes that contain the essentials of the particular oral hearing or evidence-taking, the relevant statements made by the parties, the testimony of the parties, witnesses or experts, and the result of any inspection.

Lastly, Art. 15(9) of the Rules of Procedure of the Boards of Appeal 2019 requires that decisions be issued in a timely manner, no later than three months after the oral hearing. If the relevant Board is unable to comply with this time limit, a new date may be set. The Board is thus afforded discretion in terms of when the decision is delivered. This does not violate Art. 19(2) and (4) of the Basic Law. While the Federal Constitutional Court, the European Court of Human Rights and the Court of Justice of the European Union have formulated minimum standards as to the reasonable overall duration of proceedings, these do not result in any specific time limits as to when judgments must be delivered.