German Federal Constitutional Court paves the way for the UPC
09 July 2021
As an international treaty the Agreement on a Unified Patent Court (UPCA) provides for the establishment of the Unified Patent Court (UPC). As a joint Court of the Contracting Member States, the UPC shall have its own legal personality. The UPC is supposed to obtain exclusive competence for an extensive catalog of dispute matters regarding European and Unitary Patents in each Contracting Member State.
An earlier Act to ratify the UPCA (UPCA-Approval Act I) had been declared invalid by the decision of the Federal Constitutional Court of 13 February 2020 (2 BvR 739/17). The Court held, that there was a lack of a 2/3 majority of the German Parliament (Bundestag), which had been necessary according to the German Constitution to transfer the judicial power to a newly established European Court.
In response to that decision the German Parliament (Bundestag) passed a new UPCA-Approval Act II with a 2/3 majority on 26 November 2020, followed by an unanimous approval by the Federal Council (Bundesrat) on 18 December 2020. The UPCA-Approval Act II was, however, also attacked with several constitutional complaints with the request to issue a preliminary decision. The President had declared neither to execute nor to publish the UPCA-Approval Act II until the Federal Constitutional Court decided the case. This has further delayed the start of the UPC.
On 9 July 2021 the Federal Constitutional Court published its decision of 23 June 2021 (2 BvR 2216/20; 2 BvR 2217/20) (English summary) to reject the constitutional complaints. In its reasoning, the Senate stated that the constitutional complaints were inadmissible. The complainants had not adequately substantiated to be violated in their fundamental rights. The Court also held, that there was no obvious violation of the rule of law (Rechtsstaatsprinzip), the fundamental right to effective legal protection and the Law of the European Union.
It is now expected that Germany will ratify and deposit its ratification bill soon. Further two signatory states will have to agree to be bound by the Protocol on Provisional Application. Once this will have happened, the Provisional Application Period can be started. The more detailed time plan will be published by the Preparatory Committee of the UPC hopefully soon. Furthermore, it is hoped that the provisional phase will still start in 2021 with the UPC to become fully operational in 2022.