Hungary’s ratification of the UPC Agreement will require a constitutional amendment following Constitutional Court decision


This morning, the Constitutional Court of Hungary published its decision on a motion (No. X / 01514/2017) requesting the Court’s opinion on the compatibility of the Agreement on a Unified Patent Court (UPCA) with the Hungarian Constitution, and on the appropriate mechanism for its ratification.  As reported here, the motion had been filed on 18 July 2017 by the Hungarian Minister of Justice, acting on behalf of the government.  The Constitutional Court has concluded that, as matters stand, none of the mechanisms provided in the Constitution would be appropriate to ratify the UPCA.  This means that an amendment of the Constitution would be required before Hungary may proceed to ratify the Agreement.

The Court had first been asked to consider whether ratification of the UPCA could be operated under the mechanism for the transfer of sovereignty in Article E, paragraphs (2) and (4) of the Constitution.  This provision allows Hungary to participate as a Member State of the EU, and to enter international agreements with other Member States, in order to exercise some of its constitutional competences jointly with other Member States through the institutions of the EU, subject to ratification of such an agreement by two thirds of the parliament.  The Court noted that Article E could only be used to ratify an international agreement finding its legal basis in the EU founding treaties and, relying on the CJEU’s decision in the second Spanish challenge (C-146/13), reached the conclusion that this was not the case.  This left Article Q of the Constitution, the general provision allowing Hungary to enter international agreements, as the only mechanism available to ratify the Agreement; however the Court found that this could not be used either as the UPCA was incompatible with the current constitutional regime.  The Court noted that the UPCA was concerned with the implementation of an international forum supplementing the domestic court structure, and excluding from the jurisdiction of the national courts the resolution of certain private disputes.  According to the Court, this amendment to the Hungarian judicial framework amounted to a delegation of judicial powers, including the right to judicial review, that in Hungary are constitutionally protected.

It follows from the Constitutional Court’s decision that Hungary’s ratification of the UPCA will not be possible without an amendment to the Constitution that would allow it.  It must be noted that Constitutional amendments are not as rare in Hungary as they are in other jurisdictions, and in fact the current Constitution has already been amended seven times since it came into effect in 2012.  In any event, it is to be presumed that this decision will delay Hungary’s participation in the unitary patent and UPC project.

Update: the Constitutional Court has since published an English translation of the decision – decision here, summary here.

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