The German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has published here the long-awaited decision by its full Second Senate regarding the UPC.  In this decision (which at present is only available in German although the Court has issued an English language press release), the constitutional complaint against the legislation required for Germany to ratify the Unified Patent Court (UPC) Agreement was upheld.  We will provide our considered view in due course, but the key take home message is that the complaint was upheld on a procedural basis relating to the means by which the implementing legislation (Act of Approval) was passed by the Bundestag (the German Parliament).

The complaint was filed shortly after the draft legislation had been passed by the Bundestag on 31 March 2017.  The Act of Approval required signature by the Office of the President of the Republic and then publication in the Federal Law Gazette in order to come into force, but on receiving the complaint the BVerfG asked the President to temporarily refrain from signing the legislation.  With today’s decision of the BVerfG, the Act of Approval is void as it was not effectively passed by the Bundestag.  There can be no appeal of a decision of the BVerfG.

The Senate held that the Act of Approval required adoption by two thirds of the members of the Bundestag under Article 79(2) of the German Basic Law (the German Constitution).  This was on the basis that the Act of Approval (and through it the UPC Agreement) amends the Constitution in substantive terms.  This is linked to the conferral of judicial functions, including exclusive competence in certain cases, on a supranational Court (the UPC), which affects the fundamental rights guaranteed in the German Basic Law.  The Senate also linked this to their finding that the Act of Approval fell within Article 23(1) of the Basic Law on the basis that it is supplementary to or otherwise closely tied to the European Union´s integration agenda (Integrationsprogramm), notwithstanding that the UPC Agreement was executed as an international agreement as between EU Member States rather than within the formal framework of EU legislation.

It remains to be seen whether what appears to be a technical difficulty may (both legally and politically) be overcome by a further vote in the Bundestag by the necessary qualified majority.  The political landscape has recently changed with the announcement by the UK Government that it no longer intends for the UK to participate in the UPC, and minds will be turned elsewhere during these difficult times regarding COVID-19.  We await to learn whether there is political appetite to jump start the UPC project following this pothole or whether this may mark the end of the road.