On 13 February 2020 the Second Senate of the Federal Constitutional Court declared that the Act of the Approval of the UPC Agreement was void (BVerfG, Beschluss des Zweiten Senats vom 13. February 2020 – 2 BvR 739/17 -, Rn. (1-21).). The published decision states “in order to safeguard their right to influence the process of European integration by democratic means, this, in principle, also entails the right of citizens that sovereign powers be conferred only in the ways provided for by the Basic Law. An act of approval to an international treaty that has been adopted in violation thereof cannot provide democratic legitimation for the exercise of public authority by EU or any other international institution supplementary to or otherwise closely tied to the EU”.

The Unified Patent Court (UPC) is meant to be a court common to the Contracting Member States of the European Union (EU) and thus part of their judicial system. It will, when ratified, have exclusive competence in respect of European patents and European patents with unitary effect. The UPC agreement (UPCA) was signed in February 2013 and had to be ratified by 13 EU member states, including the three largest patenting countries (i.e. Germany, UK and France) to enter into force. The ratification process had been stayed during the process of determining if the Act of Approval by German Bundestag was following ordinary rules of procedure.

The German Bundestag is the supreme constitutional organ of the Federal Republic of Germany and the only organ of the state that is directly elected by the people. All constitutional decisions made by the Bundestag requires 2/3 of the votes, i.e., 2/3 of the 709 members. The Act of Approval of UPC was passed unanimously, however only 35 members were present during the voting.

According to the decision the Act of Approval had to be taken by a qualified majority since it amends the German constitution in substantive terms. Since 35 members is not a qualified majority (2/3 of the votes) the Act of Approval was considered void.

Interestingly, The Act of Approval is supplementary to, or otherwise closely tied, to the European Union’s integration agenda (Integrationsprogramm) and effectively replaces provisions that did not achieve the majorities necessary to be adopted as EU law. This may have been the reason for stressing through the Act of approval with only 35 members present at the German Bundestag.

With the recent decision we foresee it is highly unlikely the UPC will become a reality in the near future, particularly since the UK also recently declared that they will not take part of the UPC system. As the entry into force of the UPCA currently necessitates participation of the UK, the agreement would then need to be renegotiated and re-approved by the EU member states.

Is the German Government willing to bring forward another Act of Approval? Given the amount of time and effort to reach this stage we believe that the chances of reaching a new agreement between the EU member states is rather slim or at least very far into the future.

Contact Johan Nordkvist with your questions.