Council of the EU asked about the UPC’s future and Germany’s ratification


The European Parliament has published a written question of 8 June 2020 from Patrick Breyer (a German MEP) to the Council of the EU, which comprises the following questions:

  1. Does the Council agree that Germany no longer has the right to ratify the UPCA?
  2. Has the future of the UPCA been discussed by the Council?

This follows the written question Mr Breyer asked the European Commission on 5 May 2020 (reported here), which comprises the following questions:

  1. Can the Commission confirm that Germany no longer has the right to ratify the UPCA?
  2. Is the Commission going to advise the German Government not to ratify the UPCA as it stands?
  3. If Germany ratified the UPCA in its existing form, would the Commission launch an infringement procedure against it?

The reasoning behind Mr Breyer’s view that Germany can no longer ratify the UPCA (Agreement on a Unified Patent Court) is that the UK (which has ratified the UPCA) is, since Brexit, a “third country” under article 216 TFEU and, according to EU case law (C-22/70), member states cannot enter into agreements with third countries that affect EU rules or alter their scope. However, as the UK government has confirmed that the UK will not be participating in the UPC, if the UK withdraws its ratification of the UPCA before Germany ratifies that issue should not arise.

According to the European Parliament website, written non-priority questions must be answered within 6 weeks of notification to the institution concerned.  However, this time limit is often not met.  The European Commission’s answer is already overdue (even assuming it was not notified on 5 May but by 20 May, when the question was published).  It has been reported that Mr Breyer has recently said that he plans to take legal action should he receive no answer or an unsatisfactory one.

As reported here and here the German government has been consulting on a new draft bill to enable Germany to ratify the UPCA, but, if it does ratify, the FFII (Foundation for a Free Information Infrastructure) has threatened a new constitutional complaint to the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG), one ground being the issue above raised by Mr Breyer.  The German government’s consultation closed last Friday, 3 July.

Gregory Bacon


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