The Council of the EU has recorded here that Austria signed the Unified Patent Court (UPC) Agreement’s Protocol on Provisional Application (PPA) on 29 January 2019. The PPA allows various provisions of the UPC Agreement to come into force early, and in this ‘provisional application phase’ final preparations for the start of the UPC system, such as recruitment of judges, can be completed. Under Article 3, the PPA will come into force the day after France, Germany, the UK and 10 other countries have ratified, or informed the depositary that they have parliamentary approval to ratify, the Agreement, and have consented to be bound by the PPA (or by the provisional application of the relevant provisions of the Agreement). Because countries have different methods for dealing with protocols, Article 2 of the PPA provides for a variety of ways in which a country may consent to be bound by it, e.g. signature alone, signature followed by ratification, or a unilateral declaration. In the case of Austria, ratification of the PPA is required but this is expected to be a relatively quick, formal procedure.
Once Austria has ratified the PPA, as it ratified the UPC Agreement in 2013 (the first country to do so), it will have met the Article 3 PPA requirements. France, the UK and nine other countries (Belgium, Bulgaria, Denmark, Estonia, Finland, Italy, Luxembourg, the Netherlands and Sweden) have already done so. Therefore, apart from Austria (or another country), only Germany must do so in order for the provisional application phase to start. Germany signed the PPA on 1 October 2015 but must also ratify, and that ratification, together with ratification of the UPC Agreement, is on hold due to the pending constitutional complaint in the German Constitutional Court. The effect of both the timing of that Court’s decision (and the nature of the decision itself) and Brexit on the UPC project is considered in Will 2019 be the year of the UPC? .