Responses to German government’s consultation on draft bill for Germany to ratify UPC

Responses to German government’s consultation on draft bill for Germany to ratify UPC

16 July 2020

The German government has published here 14 responses to its recent consultation on a new draft bill enabling Germany to ratify the Unified Patent Court Agreement (UPCA).  Eight of the responses express support for the bill, many urging swift ratification by Germany.  Of the other responses, many express support for a unitary patent and UPC system but are concerned about the German government’s proposal, which is to ratify the UPCA unamended to take account of the UK’s non-participation.  One particular concern is the German government’s view that (assuming the UK has actually withdrawn its ratification) the UPCA could be interpreted that the UPC central division would comprise, at least temporarily, only Paris (the seat) and Munich (a section), i.e. that there would be no new location for the work that would have been allocated to the London section.  Some consider it unlikely that all the other participating countries will agree to this and, therefore, the political declaration proposed by the German government on the issue will not be achieved.  As reported here, the Italian group of the AIPPI has already stated that the German government’s proposal regarding the UPC’s central division would be contrary to the UPCA.

As well as the issue of the UPC’s central division, other concerns were expressed about the unitary patent and UPC system going ahead without the UK, including:

- the system will be less attractive without coverage of the UK;

- the UPC procedure includes clear features of English legal procedure, yet the only participating country with a similar procedure will be Ireland;

- the expertise of UK judges will not be available, and UK lawyers will not be able to participate;

- English still being the main language; and

- the financial implications for the remaining participating countries.

Other concerns about the new draft bill were related to compatibility of the UPCA with the German Basic Law (constitution), e.g. judicial independence (judges being repeatedly appointed for a limited period, and some being part-time), and the UPCA’s provisions that establish the primacy of EU law. It was noted that the German Constitutional Court (BVerfG) had not considered all the grounds of Dr Stjerna’s complaint as it was not necessary, and that there have already been indications of one or more further constitutional complaints (e.g. see here). 

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