Federal Constitutional Court voids the German UPCA Ratification Law
March 20, 2020
Karlsruhe, 20.3.2020
The Federal Constitutional Court (FCC) issued its long-awaited decision in the case 2 BvR 739/17 on the constitutional appeal of Dr. Stjerna about the compatibility of the German ratification law for the Agreement on a Unified Patent Court (UPCA) with the German Basic Law (BL) this morning. It declared the German Ratification Law as unconstitutional and void.
The decision was issued by the full 2nd Senate of the FCC and can be found here (in German)
The constitutional appeal was successful, because the ratification law was not signed by the requisite 2/3 majority of the "members of the Bundestag". While the Bundestag's decision was unanimous, only about 35-38 MPs were present when it came to the final vote.
The FCC held the constitutional appeal admissible only to the extent that it related to the (alleged) violation of complainant's rights under Article 38(1), first sentence, BL in conjunction with Article 20(1) and (2) BL, and Article 79(3) BL by violation of the requirement of a qualified (i.e. 2/3) majority for the UPCA ratification law under Article 23(1), third sentence, in conjunction with Article 79(2) BL. Otherwise the complaint was held inadmissible.
This is significant because it allows the Bundestag, at least in theory, to repeat the vote and pass the ratification bill in an orderly and constitutional process. This, however, is extremely unlikely to happen, since the UPCA will have to be amended anyway to take the developments in the UK and the UK's intended farewell from the Unified Patent Court Agreement into full account. It will therefore take some (!) time before a ratification bill will again be presented to the Bundestag.
However, this decision also means that at least the FCC will most likely not establish unsurmountable hurdles against the establishment of the UPCA. Negotiations about the future shape of the UPCA can therefore be started or resumed without a further sword of Damocles hanging above the negotiators' heads.
The key reasons expressed in the decision can be found here in English, and I would direct readers there for more information. Interestingly, the decision was not uncontroversial and three of the eight judges issued a dissenting opinion, which is also summarized in the helpful English press release by the FCC.
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Jan Verbist
The other deeper legal problems raised by Stjerna were not addressed. So the other problems are still there.
Joeri Beetz
"However, this decision also means that at least the FCC will most likely not establish unsurmountable hurdles against the establishment of the UPCA. Negotiations about the future shape of the UPCA can therefore be started or resumed without a further sword of Damocles hanging above the negotiators’ heads." Where is the above based on? I can't find anything in the English summary that would suggest this. Is there a more detailed German version somewhere, maybe?
Attentive Observer
I fear that the situation created by the decision of the FCC is not merely a problem of resending the bill through the German Parliament. There is more to it, and the FCC has taken the easiest way to deal the UPCA as it stands a blow. First of all, all those claiming that the complaint will be dismissed at once have been blatantly contradicted, and they were a lot. I can agree at a pinch that the FCC “will most likely not establish unsurmountable hurdles against the establishment of the UPCA”, but some of the conclusions are going quite far. The FCC made nevertheless one thing clear: “The Agreement is open exclusively to EU Member States.” So all the various people thinking that post Brexit UK, and possibly even more non-EU states could participate, have received a clear rebuff. All explanations of Mr Tillmann that C 1/09 did not close the door to non-EU members are void. The same goes for the hopes expressed by EPLIT. The FCC made clear that the UPCA does not result from a “unanimous decision of the Council and ratification by the Member States”. It adds even that “Until now, the political will has been lacking in this respect.” The FCC also noted that it “is because the necessary unanimity could neither be achieved for the way outlined in the Treaties by Art. 262 TFEU nor for an amendment pursuant to Art. 48 TEU.” That the FCC endorses the concept of enhanced cooperation is one thing. But does it bring something to add an extra layer of jurisdiction not applicable to all member states of the EU. Poland has said no, and the Czech Republic as well. In Hungary there are also constitutional problems. Without being applicable to all EU member states the UPC is a nuisance, the more so that it can interpret the EPC in way different from the Boards of Appeal of the EPO. Another source of problems! The FCC also noted that “A significant part of the Member States’ jurisdiction over private and administrative legal matters of economic significance is conferred to the exclusive jurisdiction of the Unified Patent Court by Art. 32 of the Agreement.” This cannot be adopted lightly, and it is amazing that it needed a decision of the FCC to show how far the UPCA interferes heavily with national legal systems. That a minority of judges see a problem which might block further European integration is understandable, and is to be respected. However such far reaching decisions should only obtained with an ample majority. It is not enough in such situations that “decision-making with narrow majorities must also be possible.” Let’s hope that the time needed to reconsider the UPCA, and also to solve the problems with the London section of the Central (sic) Division, will help to come up with something acceptable to all EU member states. There are so many different problems to be dealt with, and it should be the opportunity to rewrite the whole UPCA. I just name a few: - In spite of the statements before the House of Lords Committee that the UPC is for SMEs, it is clear that this is not the case. If it is for SMEs it should also show it with more than lip service. - Article 10 of the statute which allows a judge to be removed from office without giving him means of redress has to be amended - The Rules of Procedure, at least the first version of those should also be part of the ratification process. They should not be concocted by a self-co-opted group of people, as they also interfere heavily with national legislation. Last but not least, it should not be forgotten that barely a third of applications at the EPO stem from EU member states, so it is not difficult to see that the UPCA might turn out to be the opposite of its alleged aim. Why were the USA so keen that UK should stay in the UPC? The UPCA is not dead but it needs a long stay in intensive care. I would say a new Form of Complicated Corona virus hit it? As a new ratification process appears necessary, be it only due to Art 7(2) UPCA, all citizen should write to their MPs to warn them that it is not just for the sake of European integration that such a treaty has been signed, but for the sake of people with deep pockets and some of them wanting to fill them as well. Techrights and zoobab: FINGERS OFF!! Even by excerpts on Twitter!