FFII threatens constitutional complaint if Germany ratifies UPC Agreement

FFII threatens constitutional complaint if Germany ratifies UPC Agreement

17 June 2020

The FFII (Foundation for a Free Information Infrastructure) has published a press release commenting on the German government’s consultation on a new draft bill to enable Germany to ratify the Unified Patent Court (UPC) Agreement (reported here). The FFII lists problems that it considers arise with the unitary patent and UPC system, and maintains that if Germany ignores those problems “there will be a second constitutional complaint filed immediately”. Benjamin Henrion, FFII’s president, has tweeted: “FFII will go fundraising to file a second constitutional complaint in Germany against EU-wide software patents via the backdoor of the Unitary Patent Court.”  One particular problem the FFII focuses on is Brexit. As reported here, the FFII has previously raised this issue, and it is currently the subject of questions to the European Commission. The new German draft bill includes some explanatory notes in addition to the (unamended) UPC Agreement which include references to Brexit (pages 2-3). The German ministry take the view that the UK’s departure from the UPC due to Brexit should not prevent the Agreement’s implementation as the unforeseeable withdrawal of one of Germany, France and the UK does not prevent the entry into force for the remaining parties.  Further, the ministry maintains that there should be no need to amend the Agreement regarding London being a section of the Court’s central division, arguing that the Agreement could be interpreted that the central division would comprise, at least temporarily, Paris (the seat) and Munich (a section), assuming the UK has actually withdrawn its ratification. The notes state that a political declaration on these issues will be sought among the remaining contracting states.

As reported here, another potential ground for a constitutional complaint is that the UPC Agreement’s provisions that establish the primacy of EU law violate the Basic Law (the German constitution). The German government argues against this in the draft bill’s notes (page 7). 

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