German draft UPC legislation progresses through parliament

German draft UPC legislation progresses through parliament

01 October 2020

The Bundesrat has published minutes of its meeting on 18 September 2020, reporting that there were no objections to the draft legislation required for Germany to ratify the Unified Patent Court (UPC) Agreement and the Protocol on Provisional Application (PPA).  This is the first stage in the parliamentary procedure for a bill submitted by the federal government, and the bill will now enter the Bundestag for its first reading.

There remains the risk of another challenge in the German constitutional court (BVerfG) preventing, or delaying, the German legislation coming into force.  One potential challenger is the FFII (Foundation for a Free Information Infrastructure), which published here on 17 September an open letter to the Bundesrat raising objections to ratification of the UPC Agreement, and also requesting it to send the Agreement back for renegotiation so that the CJEU could rule on software patents.  Its objections were that ratification would violate the German constitution (Basic Law) and three international agreements: the Vienna Convention on the Law of Treaties (VCLT), the European Convention on Human Rights (ECHR) and the Treaty of the Functioning of the European Union (TFEU).  The FFII concluded its letter with an indication that it would consider a second constitutional complaint. Some of its objections were raised in the previous constitutional complaint but the BVerfG did not rule on them (see here).  The FFII did not mention another potential ground for a constitutional complaint (also raised in the previous complaint but not decided), i.e. that the UPC Agreement’s provisions that establish the primacy of EU law violate the Basic Law; comments by Justice Huber (the BVerfG’s rapporteur in the UPC case) in relation to another case suggested that ground may succeed (see here).  

Regarding relocation of the London section of the UPC’s central division, the FFII also asked the Bundesrat to send the UPC Agreement back to the European Commission for renegotiation because “Germany cannot re-interpret the UPCA in order to unilaterally (temporary or indefinitely) redirect the workload of the London court to Paris and Munich.”  However, following the recent meeting of the UPC Preparatory Committee (in which all participating countries are represented), reported here, the Italian Ministry of Foreign affairs reported here that in the meeting Italy announced its intention to present Milan as a candidate to replace London but the Committee agreed to a temporary redistribution to Paris and Munich in order to allow the UPC Agreement to enter into force as soon as the ratification process is completed.  Regarding that process, not only must Germany ratify the UPC Agreement and PPA but two more countries must consent to the PPA to allow the provisional application phase of the UPC to start, during which final preparations, such as recruitment of judges, can take place.

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