German court declares act ratifying the UPC agreement void

This Friday, the German Federal Constitutional Court, "Bundesverfassungsgericht" ("BVerfG") declared the German ratification of the agreement on the Unified Patent Court (UPC) unconstitutional. It means that for the present time Germany's ratification of the agreement has been postponed for an indefinite period. As Germany's ratification is necessary for the UPC agreement to enter into force, the entering into force of the system has also been postponed for an indefinite period.

The decision was delivered by eight judges, and a majority of five voted in favour of finding the agreement void.

In the reasons, the majority in particular points out the following:

Firstly, the required qualified 2/3 majority of the German Parliament did not vote in favour of the act of approval. Such a majority is required under the German Constitution if (certain) amendments are to be made to the EU Treaty basis or similar rules. For various reasons, the majority found that the UPC agreement implied an amendment of the EU Treaty basis, more specifically Article 262 of the TFEU. Article 262 of the TEU provides for conferral of jurisdiction on the Court of Justice of the European Union in disputes relating to intellectual property rights. The establishment of the Unified Patent Court had thus caused Article 262 to be amended or replaced.

Secondly, the majority pointed out that the UPC agreement transferred a number of competences to the European Patent Court which would otherwise be within the scope of the German courts. For instance, the power to declare patents void with direct effect in Germany. This also required the act of approval to be adopted by a 2/3 majority. This part of the reasoning is very consistent with the reasoning which meant that Denmark's implementation of the UPC agreement could not take place until the Act had been approved by a referendum, see section 20 of the Danish Constitution, as it was not possible to obtain the required 5/6 majority.

The act of approval was found void on formal grounds. In principle, the German Parliament can therefore adopt the act of approval again with the required majority to the effect that ratification can take place. The act of approval was adopted unanimously by 35 votes. Thus, the reason for the lack of a qualified majority was apparently not political disagreement as to the implementation of the UPC agreement but the fact that too few people voted.

However, it is uncertain whether this can and will happen in the immediate future. The governments of most European countries have other and more important things on their minds due to the ongoing Corona/COVID-19 crisis. This is also likely to be the case for some time after the crisis is over.

In addition, there is still the previously described problem of Brexit and what is to be done about the UK section of the central division. The German government previously announced that it would at any rate discuss the UPC agreement in the light of Brexit with the other participating countries. The need for such a discussion has not become less after the UK has announced that it does not wish to participate in the UPC.

Accordingly, it is not realistic that the Unified Patent Court will enter into force any time soon.

English version of the press release from BVerfG

The decision of BVerfG (in German)

Read more about the UPC on Plesner's dedicated Unified Patent Court site


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