UPCA Enactment in Germany Found Unconstitutional

20 March 2020

The German Constitutional Court has found that the Bundestag did not effectively pass the Act of Approval of the Unified Patent Court Agreement (UPCA) rendering the Act of Approval void.

The UP/UPC system is an EU initiative to establish a Unitary Patent (UP) having unitary effect throughout the EU member states, and to establish the Unified Patent Court (UPC) to hear disputes relating to the Unitary Patent, and also relating to European patents having effect in the EU member states.

The complaint filed with the German Constitutional Court was held admissible only in as far as it related to the process of ratification. The ratification process was challenged on the basis that the Bundestag (Germany's upper house) did not vote in favour by the required two-thirds majority. Although in March 2017 the Bundestag voted unanimously in favour of the Act of Acceptance, the total number of votes cast was well below two-thirds of the number of members. The Constitutional Court found that two-thirds of the voting members of the Bundestag were required to vote in favour of the Act of Approval because of the transfer of judicial functions from German Courts to the UPC.

Germany is no longer in a position immediately to ratify the UPCA. The Constitutional Court found inadmissible objections that the UCPA is contrary to the German Constitution, leaving open the possibility of another vote taking place in the Bundestag and enabling Germany to ratify the UPCA or a similar agreement.

At present it is unclear when or even whether further progress towards the UP/UPC will take place. Another vote in the Bundestag on the UPCA is unlikely in the short term because the UPCA, in any event, requires renegotiation and amendment to account for the UK Government's announcement in February (reported here) that it will not seek participation in the UP/UPC.

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