Federal Constitutional Court stops Unified Patent Court for formal reasons

The German Federal Constitutional Court has declared the law approving the Agreement on a Unified Patent Court (UPCA) null and void. This means that for the time being, the Unified Patent System cannot start.

The Federal Constitutional Court has declared the law approving the UPCA unconstitutional on formal grounds. In the Court’s view, the law brings about a constitutional change, but was not passed by the German federal parliament – the Bundestag – with the two-thirds majority required for such a change.

A two-thirds majority is necessary for laws approving international treaties that are connected to a transfer of sovereign rights within the EU. The Court explained that citizens have in principle a right to the effect that a transfer of sovereign rights is only possible with this high threshold.

What is remarkable about the Court’s decision is that three of the judges of the senate issued a dissenting opinion. In their view, the “claim to democracy” does not imply a right to the observance of the formal requirements for the transfer of sovereign rights. This also means that the decision was only reached by a majority of 5 to 3 votes of the constitutional judges. This is the narrowest decision to establish unconstitutionality, since a law is considered to be constitutional if it receives a 4 against 4 vote.

The Federal Constitutional Court also rejected the rest of the constitutional complaint as inadmissible. The complaint was therefore unsuccessful in further criticisms, claiming problems in the selection and appointment of judges, lack of legitimisation of interferences with constitutional rights by the Unified Patent Court or incompatibility of the UPCA with EU. This leaves only the formal deficiencies in the legislative procedure of the law, which can now be rectified by the Bundestag.

It is now up to the Federal Government to initiate the legislative procedure as quickly as possible and thus enable the proper ratification of the EPC. The majority of the parliamentary groups in the Bundestag support the project, so that the 2/3 majority required by the Federal Constitutional Court is likely to be achieved.

The ratification of the EPC in the Federal Republic of Germany is the last outstanding prerequisite for the Unified Patent Court (UPC) to be able to begin its work. For the first time, patent holders will be able to claim infringements of European patents in several countries before a single specialised court.

We will provide an English translation of the decision shortly. For all questions regarding the UPC, the attorneys of Kather Augenstein are at your disposal. You can also subscribe to our newsletter to be regularly informed about the latest developments.

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