European Commission states that Germany’s UPC ratification not affected by Brexit

European Commission states that Germany’s UPC ratification not affected by Brexit

16 July 2020

The European Parliament has published here the European Commission’s response to German MEP Patrick Breyer’s questions (in full below) regarding whether, following Brexit, Germany is still entitled to ratify the Unified Patent Court Agreement (UPCA).  Mr Breyer’s view was that Germany no longer has the right to ratify because the UK (which has ratified) is 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 Commission’s response (in full below) was, in summary, that its view was that the UK’s withdrawal from the EU does not affect the ratification process of the UPCA in Germany, adding that the Commission would welcome a swift ratification by Germany.  It should be noted that the Commission’s statement appears to be predicated on the assumption that both the unitary patent and UPC system are only open to EU member states, a view which is not universally shared in the discussions regarding Brexit.  Mr Breyer’s question comprised the following: “1. Can the Commission confirm that Germany no longer has the right to ratify the UPCA? 2. Is the Commission going to advise the German Government not to ratify the UPCA as it stands? 3. If Germany ratified the UPCA in its existing form, would the Commission launch an infringement procedure against it?”  The Commission’s answer (by Thierry Breton, Internal Market Commissioner) was the following:

“The unitary patent will be an effective tool for businesses to protect their inventions on the European market at a competitive price, and the Unified Patent Court will offer the possibility for these businesses to enforce their patents at a European Union level, thereby enhancing legal certainty and reducing costs. It will further boost innovation in Europe, which will be key for the economic recovery following the COVID pandemic.

The Commission is of the view that the withdrawal of the United Kingdom from the European Union does not affect the ratification process of the Unified Patent Court Agreement in Germany. The United Kingdom signed and ratified the United Patent Court Agreement when it was still an EU Member State and in its capacity of Member State. The United Kingdom has ceased to be an EU Member State and, therefore, will not participate in the unitary patent system after the end of the transition period, given that participation in that system, including the Unified Patent Court Agreement, is only open to EU Member States.

The Commission would welcome a swift ratification of the Unified Patent Court Agreement by Germany.”

As reported here, Mr Breyer has also asked the Council of the EU the following: “1. Does the Council agree that Germany no longer has the right to ratify the UPCA? 2. Has the future of the UPCA been discussed by the Council?” 

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