European Commission asked to confirm that Germany cannot ratify UPCA in its current form

European Commission asked to confirm that Germany cannot ratify UPCA in its current form

27 May 2020

The European Parliament has recently published a written question of 5 May 2020 from a German MEP, Patrick Breyer, which, in summary, asks the Commission to confirm that Germany cannot ratify the current Unified Patent Court Agreement (UPCA). The reasoning is that the UK (which has ratified the current UPCA) is, since Brexit, a “third country” under article 216 TFEU and, according to EU case law (C-22/70), member states cannot enter into agreements with third countries that affect EU rules or alter their scope. The FFII (Foundation for a Free Information Infrastructure) raised the same issue (here) in February, stating that if Germany did ratify the UPCA it would be grounds for a new constitutional complaint to the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG). However, as reported here, since then the UK government has confirmed that the UK will not be participating in the UPC and it is not yet certain that Germany and sufficient other member states will decide to proceed with the UPC without the UK, but if they do, and if the UK withdraws its ratification of the UPCA, the issue raised would not apply. It should be noted that there are different views on whether the UPCA would need to be amended in any case before Germany ratifies as it currently provides that one section of the central division be in London; although one view is that would not be necessary as the jurisdiction of the London section would automatically transfer to Paris, the actual seat of the central division, that view is not shared by all, with Milan, for example, being cited as a potential location. 

The written question from Mr Breyer comprised the three questions below. The Commission should answer (non-priority) written questions within 6 weeks but often this time limit is not met.

  • Can the Commission confirm that Germany no longer has the right to ratify the UPCA?

  • Is the Commission going to advise the German Government not to ratify the UPCA as it stands?

  • If Germany ratified the UPCA in its existing form, would the Commission launch an infringement procedure against it?

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