German Act approving UPC Agreement void - Bundestag majority not met
German Court rules that Act of Approval to the UPC Agreement is contrary to German Constitution.
Update: German Ministry of Justice reveals plan to continue in UPC project
In brief
The German Federal Constitutional Court ruled today (by a narrow majority) that the German Act of Approval to the UPC Agreement is void for procedural reasons.
Launch of the Unified Patent Court or UPC, the new international court for patent disputes, depends on this decision of the German Federal Constitutional Court and so it has been eagerly awaited for many months.
The Court reached its decision by a narrow 5:3 majority which is unusual. The vast majority of decisions are reached with all eight judges in agreement.
The successful complaint
The original complaint was filed in 2017 by a German lawyer, Ingve Stjerna. The complaint was based on a number of grounds. The argument which succeeded is a more formal one, namely that the adoption of the Act of Approval required a particular majority of the Bundestag, the German Federal Parliament.
The Act of Approval confers sovereign powers on the UPC. The German Constitutional Court has ruled that in its current form it effectively amends the German Constitution (Grundgesetz) but it has not been approved by the Bundestag with the required two-thirds majority. In its reasoning, the Court stated that to safeguard the democratic process, sovereign powers should only be conferred in the ways provided for by the German Constitution. The Act of Approval to the UPC Agreement, an act of approval to an international treaty, had been adopted in violation of the German Constitution.
Dismissal of other grounds of complaint
The other grounds of complaint (relating to the appointment of judges, the lack of parliamentary basis for determination of the Rules of Procedure in Art. 41 of the UPC Agreement and an alleged violation of EU law) were dismissed as inadmissible. While the Court said that these points lacked substantiation it also indicated that the complaint would have had no prospect of success on these grounds.
Note that the Court expressly mentioned the complaint relating to Art. 20 of the UPC Agreement being contrary to the primacy of EU law. The Court did not rule on this point as the constitutional complaint was successful on the required majority point. It remains to be seen whether the Art. 20 argument will be used for another constitutional complaint after adoption of the Act of Approval with the required majority.
Effect of the decision
While Mr Stjerna has partly succeeded in his complaint this is a procedural objection which could be overcome if the Act is approved by the required two-thirds majority of the Bundestag.
Once this has been done, and assuming there are no other complaints, Germany would presumably be free to ratify the Provisional Application Protocol. This would set the clock ticking for ratification of the UPC Agreement and the UPC opening about 12 months later.
This latest hurdle will result in a further delay to the opening of the UPC but we would hope that Germany will still ratify the UPC Agreement once the procedural objections have been overcome. Of course, Coronavirus will mean an additional delay. The practical implications of the UK's departure from the UPC also remain to be seen. Given the UK Government's recent decision to withdraw from the UPC, some amendment of the UPC Agreement is required before the UPC can open for business.
Today's decision will result in a further delay to the opening of the UPC but hopefully it represents just another bump in the road rather than a dead end for the new court.
