The German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) yesterday published here a list of cases which it intends to decide in 2019. The complaint against the legislation enabling Germany to ratify the Agreement on a Unified Patent Court (UPC), case reference 2 BvR 739/17, is fifth in the list of eight cases allocated to rapporteur Justice Huber in the Second Senate. As in previous years, many cases listed in 2018 (including, of course, this UPC case) were not decided and so have been carried over. Cases have usually (but not always) been decided in the order listed, and the first two cases in Justice Huber’s list appear to be close to being decided, one having had an oral hearing in November and the other having been referred to the CJEU which gave its decision in December. 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, it appears highly likely that the UPC case will be decided this year, this view being supported by a recent report by Agence Europe that it had been informed by the BVerfG’s services that no date was set for the decision but that it should fall in the current year.
The effect of both the timing of the BVerfG’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? .