Order of the First Chamber of the Second Senate of 3 July 2006
pursuant to § 93b in conjunction with § 93a of the Federal Constitutional Court Act
(Bundesverfassungsgerichtsgesetz – BVerfGG) in the version published on 11 August 1993
(Federal Law Gazette (Bundesgesetzblatt – BGBl) I p. 1473)
– 2 BvR 1458/03 –

in the proceedings on the constitutional complaint of

RULING:

The constitutional complaint is not admitted for decision.

GROUNDS:

The constitutional complaint concerns the question in which circumstances measures of the European Patent Office may be challenged by way of a constitutional complaint.

I.

1. The European Patent Office is an organ of the European Patent Organisation (EPO), which was founded by the Convention on the Grant of European Patents (Übereinkommen über die Erteilung Europäischer Patente, Europäisches Patentübereinkommen – EPÜ, European Patent Convention) of 5 October 1973 (Federal Law Gazette (Bundesgesetzblatt – BGBl) 1976 II p. 649 (826)). Within the scope of its official activities the European Patent Organisation enjoys immunity from the jurisdiction of the courts of the Contracting States (see Article 8 of the European Patent Convention in conjunction with Article 3.1 of the Protocol on Privileges and Immunities of the European Patent Organisation (Protokoll über die Vorrechte und Immunitäten der Europäischen Patentorganisation) of 5 October 1973, Federal Law Gazette 1976 II p. 649 (985)), and is authorised as an international organisation (see Article 4 of the European Patent Convention) to organise its internal structure autonomously (organisational authority). This includes the ability to make rules to govern its legal relationships with its employees autonomously and independently of the national laws of Contracting States including the country where it has its seat (sovereignty in personnel matters).

The employees of the Patent Office are represented by a Staff Committee pursuant to Articles 2 letter a and 33 et seq. of the Service Regulations for permanent employees of the European Patent Office (Service Regulations). In addition, the Staff Union of the European Patent Office (SUEPO) was established pursuant to Article 30 of the Service Regulations to be the union representing employees’ interests. It performs its work parallel to, and independently of, the Staff Committee.

Pursuant to Article 13.1 of the European Patent Convention employees and former employees may apply to the Administrative Tribunal of the International Labour Organisation (ILOAT) in the case of disputes between them and the European Patent Organisation subject to the conditions laid down in the Service Regulations. The means of appeal contained in Articles 106 et seq. of the Service Regulations must have been exhausted before an appeal can be made to the Tribunal (see Article 13.2 of the European Patent Convention). The competent internal committee pursuant to Articles 106 et seq. does not have power to independently decide appeals submitted to it; it may only submit recommendations to the President of the European Patent Office.

2. The complainants are French nationals who are resident in Germany. They are employed at the Berlin offices of the European Patent Office. In addition to their employment as permanent [patent] examiners, they are members of the Staff Committee. In addition, they are active members of SUEPO.

The starting point for the challenged decisions are the disputes between the Staff Committee and the Patent Office about unimpeded access to an internal e-mail system (OV system). Members of the Staff Committee, including the complainants, were temporarily denied access to the system; this was after they had been given several warnings following their use of the system to send documents which were only related to the business of SUEPO. The President of the Patent Office stated on 2 November 2001 that he followed the recommendation of the internal Appeals Committee, and thus that the internal appeal about the failure to allow access could not be successful. The actions brought by the complainants against this decision were dismissed by ILOAT in its judgment of 16 July 2003.

II.

The complainants allege a violation of their fundamental rights under Article 9.1 and 9.3, Article 10, Article 5.1 as well as Article 2.1 of the Basic Law (Grundgesetz).

The European Patent Office is an intergovernmental organisation within the meaning of Article 24.1 of the Basic Law. The complainants argue that the standard for judging the decision of the President of the European Patent Office, in the form in which it was confirmed by ILOAT, should be the fundamental rights since sovereign rights that were directly enforceable vis-à-vis subjects of fundamental rights in the territory of the Federal Republic of Germany had been transferred to the European Patent Office. Furthermore, they allege that the Tribunal had, however, in general and obviously failed to provide the amount of legal protection required by the Basic Law.

III.

The constitutional complaint is not admitted for decision. It neither raises fundamental constitutional-law issues nor is there anything to indicate that it should be admitted in order to enforce the complainants’ fundamental rights specified in § 90.1 of the Federal Constitutional Court Act (see § 93a.2 of the Federal Constitutional Court Act).

1. The issues of constitutional law raised by the constitutional complaint have been clarified by the case-law of the Second Senate (regarding the protection of fundamental rights vis-à-vis supranational organisations, see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE) 73, 339 (387); 89, 155 (174-175); 102, 147 (162 et seq.); regarding legal protection through ILOAT see BVerfGE 59, 63 (91 et seq.)).

2. The admission of the constitutional complaint for decision is also not indicated for the enforcement of the complainants’ fundamental rights because the constitutional complaint is inadmissible. It is not directed against an act of public authority within the meaning of Article 93.1 no. 4a of the Basic Law and § 90.1 of the Federal Constitutional Court Act. The fundamental rights in the Basic Law do have a protective effect vis-à-vis the measures of supranational organisations to the extent that those measures relate to subjects of fundamental rights in Germany (a). However, the challenged decision of the President of the Patent Office, which was confirmed by ILOAT, has no direct legal effect within the national legal system, and thus it cannot be challenged by the constitutional complaint (b). The complainants have made no submissions that give rise to the assumption that a duty of protection exists on the part of the Federal Republic of Germany which could lead to a different result (c).

a) The term “public authority” within the meaning of Article 93.1 no. 4a of the Basic Law and § 90.1 of the Federal Constitutional Court Act does not refer to German state authority alone. The term also covers acts done under a special public authority of supranational organisations, an authority which is separate from the state authority of individual states and which concerns the subjects of fundamental rights in Germany. These acts affect the guarantees of the Basic Law and the tasks of the Federal Constitutional Court, which have as their object the protection of fundamental rights in Germany, and thus not only the protection of fundamental rights vis-à-vis German state organs (see BVerfGE 89, 155 (174-175)).

aa) The protection of fundamental rights required by Article 1.3 of the Basic Law in conjunction with Article 19.4 and Article 93.1 no. 4a of the Basic Law as well as § 90.1 of the Federal Constitutional Court Act applies vis-à-vis the acts of secondary legislation of those organisations to which the Federal Republic of Germany has transferred pursuant to Article 23.1 sentence 2 and Article 24.1 of the Basic Law sovereign powers with effect in its state territory. Such transfer means that in principle all of the organisations whose legal acts affect the national legal system, thereby affecting the rights of subjects of fundamental rights in Germany, are included in the scope of the guarantee of German fundamental rights (see Order of the Fourth Chamber of the Second Senate of the Federal Constitutional Court of 4 April 2001 – 2 BvR 2368/99 –, Neue Juristische Wochenschrift – NJW 2001, pp. 2705-2706, Order of the First Chamber of the Second Senate of the Federal Constitutional Court of 28 November 2005 – 2 BvR 1751/03 –, JURIS). The decisive question is whether the challenged measures in a specific case have to be assigned to the area of the supranational powers of the organisation if they were examined from a functional point of view, and whether or not in this respect they have direct legal effects within the German legal system.

bb) The European Patent Organisation is an intergovernmental institution within the meaning of Article 24.1 of the Basic Law. An intergovernmental institution exists where at the time it was founded it was transferred sovereign rights that give it the power to pass enactments and make individual rulings in respect of persons who are directly the legal subjects and in respect of organs responsible for the application of the law in the national legal system (supranationality), that is to say where the measures taken by the organisation have direct legal effect (see BVerfGE 73, 339 (374-375); 90, 286 (346-347)). These kind of sovereign rights were transferred to the Patent Office for it to exercise as the relevant executive organ of the European Patent Organisation (see Order of the Fourth Chamber of the Second Senate of the Federal Constitutional Court of 4 April 2001 – 2 BvR 2368/99 –, NJW 2001, pp. 2705-2706; Federal Court of Justice (Bundesgerichtshof), Judgment of 3 November 1987 – X ZR 27/86 (Federal Patents Court (Bundespatentgericht – BPatG)) –, Entscheidungen des Bundesgerichtshofs in Zivilsachen – BGHZ 102, 118 (122-123)).

b) The challenged decision of the President of the Patent Office does not, however, fall within the area of the supranational powers of the European Patent Organisation. The complainants are not affected as the subjects of fundamental rights in Germany because the measures have no legal effect on the national legal system and do not alter the legal position of individuals within it (see Order of the First Chamber of the Second Senate of the Federal Constitutional Court of 28 November 2005 – 2 BvR 1751/03 –, JURIS; Walter, Grundrechtsschutz gegen Hoheitsakte internationaler Organisationen, Archiv des öffentlichen Rechts – AöR 129 (2004), pp. 39 (47, 50)).

To the extent that the complainants were temporarily unable to access the OV system in their capacity as members of the Staff Committee as well as members of SUEPO, this had no effect on their legal position from the national point of view which is in this respect relevant. The denial of access did have legal effects as far as the relationship between the Patent Office and the complainants as employees of the European Patent Organisation (relationship inter se) was concerned; however, the denial of access did not extend outside the area of the European Patent Organisation’s internal organisation (i.e. it did not extend to its relationship vis-à-vis third parties) – in contrast with e.g. the revocation of a European patent pursuant to Article 68 of the European Patent Convention. Authority to use the Patent Office’s internal e-mail system has no factual connection with the organisation’s central task of granting patents according to procedures governed by the rule of law. Accordingly, the complainants did not have available to them the procedure for a formal appeal pursuant to Articles 21 and 106 et seq. of the European Patent Convention; instead the only option available to them was recourse to an internal Appeals Committee prior to applying to ILOAT (see Article 13 of the European Patent Convention).

The fact that ILOAT was competent to handle the dispute has no influence on the fact that the supranational powers of the Patent Office were not affected. If a measure, which – as in the present case – has to be assigned to the area of the internal organisation of the Patent Office, is the subject matter of proceedings, it cannot be upgraded to a supranational measure as a result of an internal, final and non-appealable judgment of ILOAT.

An additional factor that speaks against the existence of an act of public authority within the meaning of Article 93.1 no. 4a of the Basic Law and § 90.1 of the Federal Constitutional Court Act is that the European Patent Organisation in principle enjoys within the scope of its official activities immunity from jurisdiction and execution pursuant to Article 3.1 of the Protocol on Privileges and Immunities of the European Patent Organisation of 5 October 1973 (Federal Law Gazette 1976 II p. 649 (985)). It follows from this that it is not possible to have recourse to German administrative courts and the Federal Constitutional Court in the case of administrative acts connected with the internal organisation of the Patent Office or employment-law disputes because they do not involve the act of a German public authority. It is true that the exception provided for in Article 3.1.a of the Protocol covers the jurisdiction of ILOAT; it does not extend, however, to the case-law of the German courts because the European Patent Organisation has not waived its immunity with respect to them.

c) The result would also be the same if the review under constitutional law took as its starting point in legal dogmatics the duty of protection which was referred to by the Federal Constitutional Court in its order of 28 November 2005 (Order of the First Chamber of the Second Senate of the Federal Constitutional Court of 28 November 2005 – 2 BvR 1751/03 –, JURIS; see also Walter, loc. cit., pp. 54 et seq.).

aa) According to the Order, where the internal area of an organisation is affected, legal protection can only be granted if the German legislature and the Federal Government, which is responsible for foreign relations, use means that are suitable for ensuring that any conditions in the intergovernmental organisation which are contrary to fundamental rights are removed. The question whether this approach should be followed can, however, be left open in the present case because the only possible basis for the existence of such a duty of protection on the part of the state, and thus the existence of an act of public authority within the meaning of Article 93.1 no. 4a of the Basic Law and § 90.1 of the Federal Constitutional Court Act, would be the failure of the German organs to take action in connection with the decision made by ILOAT in relation to the complainants. [The question can be left open] because the complainants did not make any submissions regarding the question of whether and to what extent an obligation to act should be assumed on the part of the Federal Republic of Germany in this case.

bb) Furthermore, it would also be necessary in this respect for the complainants to substantiate a claim that there was a structural deficit as far as legal protection was concerned. If the Federal Constitutional Court only exercises its jurisdiction in the area of the supranational powers of an international organisation (which is not relevant here) upon condition that the persons affected substantiate their claim that the absolutely necessary protection of fundamental rights cannot generally be provided within the organisation (see BVerfGE 73, 339 (387); BVerfGE 102, 127 (164); see also Order of the Fourth Chamber of the Second Senate of the Federal Constitutional Court of 4 April 2001 – 2 BvR 2368/99 –, NJW 2001, pp. 2705 et seq.), it is not possible to apply more extensive requirements to internal measures of the organisation.

The Federal Constitutional Court has already determined that the system of legal protection in the European Patent Convention corresponds essentially to the standards of the Basic Law and thus the standard in Article 24.1 of the Basic Law (see the Order of the Fourth Chamber of the Second Senate of the Federal Constitutional Court of 4 April 2001 – 2 BvR 2368/99 –, NJW 2001, pp. 2705-2706; Order of the First Chamber of the Second Senate of the Federal Constitutional Court of 28 November 2005 – 2 BvR 1751/03 –, JURIS; see also the judgment of the European Court of Human Rights of 18 February 1999 –Application no. 26083-94 (Waite and Kennedy v. Germany) –, NJW 1999, p. 1173 (1175)). Admittedly, this case does not concern the system of the Boards of Appeal pursuant to Article 21 et seq. of the European Patent Convention, which were at issue in the previous decisions; instead the issue here is the legal protection that the internal Appeals Committees provide for employees of the Patent Office pursuant to Articles 106 et seq. of the Service Regulations. Where there is a dispute between them and the European Patent Organisation, employees and former employees of the Patent Office have, however, the right pursuant to Article 13.1 of the European Patent Convention to apply to ILOAT if they have exhausted the internal means of appeal available.

The proceedings before the ILOAT are independent of the internal appeal proceedings. On the basis of its legally defined powers and under the rules of due process, the Tribunal decides on the subject matter of the proceedings submitted to it only in accordance with legal rules and principles. Its judges are obliged to be independent and impartial pursuant to Article III of the ILOAT Statute. Accordingly, the Federal Constitutional Court has determined that ILOAT’s status and its procedural rules satisfy both the international minimum standards for basic procedural justice as well as the minimum requirements of the rule of law contained in the Basic Law (see BVerfGE 59, 63 (91-92)). Against this background the complainants have not substantiated their claim that a structural deficit existed as far as legal protection was concerned, which should have been dealt with by the federal organ responsible for foreign issues.

The giving of additional reasons is dispensed with pursuant to § 93d.1 sentence 3 of the Federal Constitutional Court Act.

No appeal may be made against this decision.