Two constitutional complaints filed against new German UPC legislation


The German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) has informed the press (see here and here) that last Friday two constitutional complaints (cases 2 BvR 2216/20 and 2 BvR 2217/20) were filed against the draft legislation enabling Germany to ratify the Unified Patent Court (UPC) Agreement and its Protocol on Provisional Application. As reported here, on the same day the Bundesrat approved that legislation but further steps are required for the legislation to come into force. Neither the grounds of the complaints nor the identity of the complainants are known. However, in upholding in March 2020 the constitutional complaint against the previous draft German law on the ground of it not having been having been approved by the requisite majority in the Bundestag, the BVerfG did not rule on other parts of the complaint (see here).

One potential ground for another constitutional complaint is that the UPC Agreement’s provisions that establish the primacy of EU law infringe the Basic Law (the German constitution). The BVerfG did not previously consider that ground but comments by the rapporteur in that case, Justice Huber, suggest that it may succeed; FAZ reported (here) Justice Huber’s comments on the BVerfG’s decision in May 2020 in the ECB case (in which Justice Huber was rapporteur), and in response to the question (translated) “The EU Commission is examining an infringement procedure. Is that not inevitable?”, Justice Huber replied (translated) “It is by no means inevitable. On the contrary, the Commission has political discretion in this respect. In doing so, it should note that Germany and most other Member States of the European Union would not have been allowed to join the European Union at all if the unrestricted primacy of European law over the Basic Law, as assumed by the CJEU, would exist. We made this clear once again in the decision on the Unified Patent Court in January.”

It remains to be seen what effect the complaints in the BVerfG will have on the UPC project.  The BVerfG may, as before, ask the President to refrain from signing the law while it considers the complaints. If the BVerfG does not promptly dismiss the cases and it is likely to take, as before, a considerable time for the BVerfG to decide them with a corresponding delay to the UPC project, it is possible that the political will of Germany and the other UPC participating countries to persevere with the project will not remain.

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