The German constitutional court rules that the German act of approval of a Unified Patent Court is void
Today, on 20 March 2020, the German constitutional court - Bundesverfassungsgericht - ruled that the German parliament did not effectively pass the act of approval of the UPC. The act is void due to failure to adhere to formal requirements.
A number of European countries, including Denmark, signed an agreement in 2013 establishing the Unified Patent Court (the "UPC"). Before the UPC could take effect, Germany, France and the UK had to ratify the UPC Agreement. This has still not yet happened with respect to Germany.
In 2017, the German constitutional court put the brakes on the German ratification process due to a challenge regarding the consistency of the UPC with the German constitution. This constitutional case has delayed the process of UPC entering into force. Today, the court delivered its long-awaited decision.
In its decision, the German constitutional court finds that the German act of approval entails a conferral of judicial functions, superseding German courts, which constitutes an amendment of the German constitution in substantive terms. Consequently, the act of approval of UPC had to be adopted by a qualified majority (two thirds) of members of parliament. This was not the case as only 35 members of the parliament were present when the act was adopted in the third reading. For this reason, the court finds that the act is void.
This decision obviously entails further delay of the UPC system. The good news is that the German parliament can simply make a new vote with the required quorum. However, when this happens is more uncertain considering the current Covid-19-situation. Another factor which presumably will also delay the UPC further from taking effect is the recent information from the UK government that the UK will not seek to participate in the UPC in spite of leaving the EU. This most likely entails that the whole UPC agreement should be adjusted. When - or whether - it will happen, when the German parliament will make a new vote and when the UPC can open its doors, remains uncertain.