UPC case to progress up BVerfG’s 2019 case list

UPC case to progress up BVerfG’s 2019 case list

19 June 2019

The German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has announced here that its Second Senate will hand down its decision in the “Banking Union” case on 30 July 2019.  This announcement indicates that the BVerfG’s decision in the complaint against the legislation enabling Germany to ratify the Agreement on a Unified Patent Court (UPC) (the “UPC case”) may be edging closer, both cases having been allocated to rapporteur Justice Huber.  In the list of cases the BVerfG intends to decide in 2019 the “Banking Union” case is listed second in Justice Huber’s eight cases, and the first case may also be decided shortly as the CJEU gave its decision in December 2018 on a referral.  The UPC case is fifth on Justice Huber’s list.  The third case is the “EPO case” (in fact four cases all concerning, in effect, Germany’s accession to the EPC) and there has been some speculation (based on a loose subject connection) that this may be heard together with the UPC case.  Whether or not that is so, and despite many cases in the BVerfG’s previous annual lists having been carried over to the next year, it does still seem possible that the UPC case will be decided this year.  JUVE has recently reported that a BVerfG spokesman said “The procedure is in progress. However, a decision date is not foreseeable at present. A decision is intended in 2019.”

The effect of both the timing of the BVerfG’s decision (and the nature of the decision itself) and Brexit on the UPC project was considered in Will 2019 be the year of the UPC? .  Since that article was written (in January 2019), as was considered likely the UK did not leave the EU on 29 March 2019, and whether it will now do so on 31 October 2019 is currently not clear.  However, even if the BVerfG dismisses the UPC case this year, the UPC would not be able to open until sometime in 2020 as the final preparations (such as recruitment of judges) are expected to take six to eight months. 

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