Straight shooter: The judge behind the German UPC decision

Today the German Constitutional Court declared the German UPC Act of Approval void. Peter Huber, as judge rapporteur, is the mastermind behind the decision. Up to now, his contacts to the patent scene have been mainly private and through his family. This has changed with the UPC case. The issues involved fit perfectly into Huber's legal history.

20 March 2020 by Christina Schulze

Peter Huber

Peter Huber, eyes alert behind green glasses, hair slicked back, is as neat as his corner office on the first floor of the Constitutional Court. When Huber looks up from his desk, his gaze falls directly on the baroque castle of Karlsruhe. On the wall behind him hangs a panoramic calendar from his home town of Munich. The court is in a sober 60s building, next door to the castle.

Huber has been a judge in Germany’s highest court for ten years. He has played a decisive role in shaping the understanding of the relationship between German constitutional law and the EU.

During his time at the Constitutional Court, based in tranquil Karlsruhe in the south-west of the country, Peter Huber has heard cases on a huge range of subjects. Constitutional complaints about the euro bailout and the European Central Bank’s bond purchases landed on his desk, as well as cases on the Ceta Free Trade Agreement between the European Union and Canada. And finally Ingve Stjerna’s complaint on the approval of agreement on the Unified Patent Court (2 BvR 739/17).

In all these cases, Huber is the judge rapporteur and thus plays a crucial role on the judges’ bench. The relationship between constitutional law and European integration is a common theme throughout the 61-year-old lawyer’s exceptional career.

Huber sums up what fascinates him about both topics. “In my first lecture as a student in constitutional law, my professor Peter Badura just talked and talked in great detail. I hardly understood a thing, but I left with the certainty that I wanted to become a lecturer in constitutional law.”

The student

In 2002 Huber himself, a native Bavarian, became professor at the University of Munich, taking over from Badura. Since 2010, he has also been a judge at the Federal Constitutional Court. The highest court in Germany provides constitutional lawyers with a significant and direct influence on German society.

But on the way to this post, Huber’s career was anything but straightforward. The first step at least, his decision to study law, was not so surprising. His father was a lawyer, and as usual at that time, without any pronounced specialisation. He dealt mainly with criminal cases.

Huber began his academic career in a privileged position. As one of the best high-school graduates of his year in Bavaria, Huber received a scholarship which allowed him to live as a student in the Maximilianeum, a palatial building in Munich, overlooking the Isar river, Munich town centre and the world-famous English Garden. It is also the home to the Bavarian Parliament. So during his studies, Huber lived side by side with politics; a proximity which has narrowed further as his career has progressed.

The all-inclusive accommodation is only reserved for a small circle of students, yet it is not considered a place of elite networking comparable to Oxbridge, the Ivy League or the École Normales Supérieure. Maximilianeum scholarship holders are more of an individualistic bent. Huber is still associated with the foundation today and he is involved in the selection of students.

The CSU member

Peter Huber

Peter Huber ©Dario Eidens-Holl

However, it was not the daily encounters with Bavarian state politicians over lunch at the Maximilianeum that motivated him to join the CSU (the Bavarian sister party of the Christian Democrats) in 1981. Rather, it was the spirit of optimism of the early years of Chancellor Helmut Kohl’s government that sparked Huber’s interest.

Constitutionally, it was also an exciting time. Kohl became Chancellor through the first and only constructive vote of no-confidence. But he wanted a new election quickly to strengthen his power base. To that end, he asked his supporters in the Bundestag to vote against him in a vote of no confidence: something that was seen as a constitutionally questionable procedure.

A fascination with politics is a leitmotif in Huber’s career, in which he has always exerted influence – sometimes as an advisor to politicians, sometimes as a politician himself, and today as a balance to the political class within the context of the separation of powers in a liberal democracy. Constitutional law, democracy and Europe remain close to his heart.

The mountain soldier

Even before he started his studies, Peter Huber had learned how to lead and to get people with very different backgrounds to agree on a goal. He completed his basic military service between secondary school and university. He decided to join the mountain infantry in Bad Reichenhall, considered an elite unit in the German army, tasked with securing the borders of the Federal Republic in the Alps in the middle of the Cold War.

Huber shared accommodation with eight young men from different social backgrounds, one of the few times in Huber’s life where he immersed himself in a world outside the academic and political arenas in which he is so at home today.

After the army, Huber began his studies in Munich and quickly left academia with the highest honours: state examination, doctorate and post-doctorate degrees.

It was then in 1992 that Huber made a second decision that was to open his world to experience far beyond Munich.

It was the post-reunification period in eastern Germany. One evening Huber was watching a TV documentary about the city of Jena after the Napoleonic wars. It was a hotbed of intellectualism: Hegel, Schiller, and the fraternities, which were to prove vital in establishment of democracy in 19th century Germany, were all there. The next morning, Huber read an ad for a professorship at the newly constituted University of Jena. He seized the opportunity and took over the chair for constitutional and administrative law, European law, public and environmental law.

The university professor

At that time Jena was filled with the smell of lignite from the neighbouring open-cast mines. The law faculty was filled with the smell of the GDR dictatorship. The law library consisted of a single bookshelf with the standard work of GDR state theory. Huber’s first lectures were attended by 15 students who had been trained for the GDR’s public prosecutor’s office.

“In my lectures, among the staff of my chair and elsewhere in Jena, I have met many people who experienced great upheaval and had to make fundamental changes to their entire lives,” says Huber. “I have great respect for that.”

In Jena, these were years of rebuilding. They held great potential for the newly founded university. In his private life, it was also the beginning of the Huber family. His wife Ariane Mittenberger-Huber moved from the Munich District Court to the Thuringian District Court nearby, which she was later to lead. In Jena, his second daughter was born; his first daughter learned to speak there. The family built a house and began to make a home.

In these ten years Huber continued to advance his career – especially as advisor in the political field. For example, he played a role in the Commission on Concentration in the Media.

The political advisor

In 2002 Peter Huber was offered the opportunity to return to Munich with the appointment as professor at the Ludwig-Maximilian-University. He took over the chair of public law and state philosophy from his doctoral supervisor Badura, the professor who had inspired him with his detailed lectures in his first semester.

For Huber this closed a circle. But on a personal level, it opened a gap that the family had to bridge. The daughters were happy in Jena and did not want to move. It took some time to settle back in Munich. His wife had made a career in Jena, and there were no suitable openings in the Bavarian justice system. In the end she moved to the Federal Patent Court. Today, she is the presiding judge in the 29th Senate for trademark complaints.

The politician

Back in Munich, Huber’s fame and influence as a university professor began to grow. He became an expert on the Federalism Commission. The aim of this body was to develop the proposals for one of the largest legal and structural reorganisations of the Federal Republic of Germany since its inception.

Then, in 2009, Peter Huber became Minister of the Interior in the state of Thuringia. “I had a lot of experience in political advice and the impression that my work as a politician worked well,” says Huber. “That’s why I would have liked to stay longer.”

Politics could have become his alternative career path, but after only twelve months Huber was elected judge to the highest German court. “Federal Constitutional Court judge may not yet be the crowning glory of my career, but it is certainly a high point,” says Huber. “The cooperation between our colleagues is unique. What makes it special is the different backgrounds of the judges – there are not only experts in constitutional law but also politicians, for example, as well as the scope of the decisions.”

He adds, “For the quality of the verdicts it is important that one can argue one’s position in a panel of eight constitutional lawyers, judges and politicians. But it is also arduous,” Huber says, giving an insight into his everyday life.

The constitutional lawyer

At first glance, the Federal Constitutional Court in Karlsruhe appears to be a constitutional body at peace with itself. Especially because the judges usually exchange information in writing. Only in rare cases do they additionally schedule an oral hearing.

But the eight judges in the two senates actually exchange views a great deal. A judgment from the highest German court is discussed and revised several times. “We reach the vast majority of decisions with all eight judges by mutual agreement,” says Huber.

Huber belongs to the second senate under the president of the Federal Constitutional Court Andreas Voßkuhle. Huber is rapporteur in a good 600 proceedings per year, including the four appeals against the European Patent Office which have been pending for years. In these appeals, the plaintiffs criticise above all the lack of a legal hearing in the EPO’s own court, the Boards of Appeal (2 BvR 2480/10, 2 BvR 421/13, 2 BvR 786/15, 2 BvR 756/16).

In spring 2017 came the complaint from Düsseldorf IP lawyer Ingve Stjerna against the German UPC laws. It not only stopped the German ratification of the European Patent Court, but the court project as a whole. Since then, the Unified Patent Court has been hanging in the balance. Now the UK will not be taking part following Brexit.

Over the past three years, the European patent community’s favourite project has been caught in a downward spiral of political events and dwindling approval. Nevertheless, the German constitutional judges around Peter Huber have not let themselves be pressured into reaching a more rapid decision.

The excitement surrounding the UPC complaint and the duration of the decision seems surprising from a Karlsruhe perspective. The Federal Constitutional Court received no fewer than 15 amicus curiae letters regarding this case. This is an extremely high number compared to other constitutional complaints.

“One should not try to put pressure on a constitutional body”

“One should not try to put pressure on a constitutional body,” Huber says with a frown. For someone who sat on the bench during the negotiations on the euro bailout package and the European Central Bank’s bond purchases, the UPC debate is not particularly impressive. The relevance of the European Patent Court to broader society is low in comparison to the court’s recent landmark ruling on euthanasia, for example.

Nevertheless, the case is interesting and, since it concerns the relationship of constitutional law to Europe, it is certainly Huber’s cup of tea. The UPC complaint fits right in with a long series of other cases that have been on Huber’s desk.

“Legally, the questions are not so different from those that arise in our other cases, such as the decision on European schools,” says Huber. In 2018, the Constitutional Court ruled on the effective protection of fundamental rights when sovereign rights are transferred to supranational organisations (2 BvR 1961/09).

Huber likes to talk about the court’s high-profile judgments. He is equally enthusiastic about those for which some politicians have criticised him for being too liberal. For example, there was political outrage when the court overturned the three percent hurdle in the European elections. But Huber remains calm: “When our judgments shake power structures and affect financial interests, it can be uncomfortable even for constitutional judges,” says Huber.

The ruling of the second senate on the UPC fits in seamlessly with this. The UPC is an economic factor – for industry, but also for the community of lawyers and patent attorneys. This is why the case has been hotly debated in the patent scene for years. The name Peter Huber, a constitutional law expert, will long be etched in the memory of Europe’s patent experts.