German government might hesitate: Why Berlin can’t wait for Brexit in matters of UPC

The federal government is currently suggesting that it will wait for Brexit before the Unified Patent Court (UPC) is allowed to start. This is the result of an answer to a question from the FDP parliamentary group. In our opinion, however, the Federal Government is firmly bound to the will of Parliament and must implement the Ratification Act with the signature of the Federal President without delay.

In the discussion about the UPC the next contentious issue is emerging: The Federal Government sees further need for coordination before the introduction of the UPC because of the Brexit. Thus quotes the Federal Government from an answer to a formal inquiry of the FDP with the words that „the actual and legal effects“ of the Brexits „must be examined and co-ordinated on European level“. “The formation of opinion is not yet complete”, so the text continues. In concrete terms, this means that the UPC launch could be further delayed.

After lawyer Björn Ingve Stjerna from Düsseldorf had filed a constitutional complaint, Federal President Frank-Walter Steinmeier stopped the ratification process at the insistence of the Federal Constitutional Court. If – as is to be expected – the Federal Constitutional Court declares the ratification act and thus also the UPC to be in accordance with the constitution, Steinmeier will be bound to sign the act. That would make it effective. And the Federal Government is again obliged to implement passed laws, i.e. to deposit the instrument of ratification for Germany directly – this also happened after the decision of the Federal Constitutional Court in the case of the ESM and EU fiscal pact in 2012.

And now Berlin is suddenly hinting at further delays, probably to increase pressure on Britain in the Brexit case. Parliamentary decision-making in Germany has been completed, and further discussions are neither planned nor necessary. After the members of the Bundestag have already expressed their will, we do not believe that the Federal Government can suspend the law on its own authority and make its effectiveness dependent on further deliberations or results at European level. Rather, if the Federal Constitutional Court confirms the Ratification Act, the Federal Government is bound by the will of Parliament, even if it sees further need for a vote. It cannot de facto suspend a law which has come into effect. Such an approach would discredit Parliament as a legislator and would ultimately be a clear breach of the constitution itself.

The only possibility would be a new parliamentary vote. Parliament, as the legislator, can of course revise laws that have already been passed in a new procedure. There is, however, nothing to be seen of such a new legislative initiative.

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