UPC stopped in its tracks by German courts

We recently reported that the UK would not be participating in the Unified Patent Court (UPC) and Unitary Patent (UP) following the UK leaving the EU. Now it is the turn of Germany to prolong the delay and uncertainty over the future of the UPC and UP by having its ratification voided. Without further developments this means the UPC and UP cannot go ahead.

The German government sought to ratify the necessary laws for the UPC and UP in June 2016 by passing the laws through the Bundestag, Bundesrat and to the German President. The ratification passed through the Bundestag without difficulty. However, by the end of 2016 a complaint had been filed at the Bundesverfassungsgericht, the German Federal Constitutional Court, claiming the ratification contravened the German constitution. The Constitutional Court have now released their Decision (in German) along with an English press release making clear the German ratification is void.

The constitutional complaint had five attacks against the ratification. These extended from a formal matter of whether a qualifying majority had been reached in the Bundestag to how German law was affected by the judicial selection process for the UPC and the actions of the UPC Administrative Committee, as well as the UPC jurisdiction over European Union (EU) law and an alleged contravention of the core EU law, the Treaty of the Functioning of the European Union. Only one of these attacks stuck however; the attack based on the majority achieved in the Bundestag, which, in a majority of five to three, the judges of the Constitutional Court decided had not been adequately met.

In the Bundestag the vote on the ratification was unanimous. While a unanimous vote would appear to be decisive and not open to challenge for not meeting the required majority, the Constitutional Court ruled this was a vote that modified the rights of German citizens. Due to this, a minimum number of members of the Bundestag needed to be present for the vote, and a two-thirds majority in favour of the ratification of those present was required. Since the quorum was not met, the unanimous vote was not a qualifying majority and therefore the ratification was void.

The judges of the Constitutional Court decided the other attacks in the complaint were inadmissible, so it is only on the formal ground of the qualifying majority that the ratification was voided. The Court did consider the arguments for and against the other attacks, so it would appear that, if appetite remains in Germany for the UPC and UP, the ratification should not have any further barriers if the necessary qualifying majority is achieved in the Bundestag.

When and if the German ratification will move forward is currently unclear. With the UK no longer seeking to participate in the UPC and UP, there may be a period of introspection in the EU in order to work out how it is possible to proceed with the UPC and UP.

For more information on the topic covered in the article or any of your other intellectual property needs, contact Alistair Holzhauer-Barrie via alistair.holzhauer-barrie@gje.com

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