Bundestag votes for the Unified Patent Court

In its 195th session on 25 November 2020, the German Bundestag approved the “Agreement on a Unified Patent Court” in an unamended version with the required majority of two-thirds of the members of the Bundestag. Overall, a broad majority of the votes of the CDU/CSU, SPD, FDP, DIE LINKE and BÜNDNIS 90/DIE GRÜNEN parliamentary groups voted in favour of the Act.

Why was a new vote necessary?

The Bundestag had already approved the “Agreement on a Unified Patent Court” in March 2017 – at that time, however, only with a simple majority.

A lawyer from Düsseldorf had lodged a constitutional complaint against the Ratification Act and based it on numerous substantive grounds.

In its decision of 13 February 2020, the Federal Constitutional Court had granted this constitutional complaint and declared the Ratification Act on the Unified Patent Court unconstitutional (BVerfG, decision of 13 February 2020 – 2 BvR 739/17 – Unified Patent Court). The reason for the unconstitutionality, however, were solely formal deficiencies in the legislative procedure. The Act brought about a substantive amendment to the Constitution but was not adopted by the Bundestag with the two-thirds majority required for this purpose. Such a two-thirds majority was required for acts of approval of international treaties in connection with the transfer of sovereign rights within the EU. In all other respects, the Federal Constitutional Court rejected the constitutional complaint as inadmissible. The complaint with regard to other points of criticism, such as problems in the selection and appointment of judges, lack of legitimation of fundamental rights interventions by the Unified Patent Court or incompatibility of the UPCA with EU law are therefore in line with the Constitution. This leaves only the formal deficiencies in the legislative procedure of the Approval Act. A detailed analysis of the decision is linked here.

Following the decision, the Federal Government immediately initiated a new legislative procedure for proper ratification, on which the German Bundestag has now decided with the necessary 2/3 majority. Due to the uncertainty caused by the Brexit and the Corona pandemic, it was not certain for a long time whether the Bundestag would still approve the Ratification Act in this legislative period.

Outlook

It is therefore more pleasing that the German Bundestag has already passed the Ratification Act this year with the necessary 2/3 majority. However, this does not mean that there are no further challenges to be overcome before the final start of the Unified Patent Court. Since United Kingdom has meanwhile withdrawn its ratification of the Convention, United Kingdom should thus finally not become part of the Convention.

For the start of the Unified Patent Court, this has the advantage that the exit negotiations should no longer have any influence on the start of the Unified Patent Court. However, a section of the Central Division should be located in London. A new location would therefore have to be found for London. There will be no way around adapting the agreement. With the withdrawal of United Kingdom, Italy is now the EU member with the third largest number of valid patents. For this reason, Italy is insisting that the vacant section of the Central Division be transferred to Milan.

All in all, the discussion on the UPC should therefore become again more lively in the next months. We will report.

Carsten Plaga

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