German Bundestag approves legislation to ratify the Unified Patent Court Agreement
November 26, 2020
The German Bundestag has approved draft legislation to ratify the Unified Patent Court Agreement. 571 representatives support the UPCA, 73 voted against. It means the necessary 2/3 majority was easily achieved. There were three abstentions.
The vote is an important step towards introduction of the Unitary Patent system, which can enter into force only after Germany has completed the ratification procedure. The draft legislation will now go the Legal Committee of the Bundesrat and could be voted on by the Bundesrat in December (UPDATE 27/11: according to the UPC Preparatory Committee this is expected to take place on 18 December 2020). It will also have to be signed by the Bundespräsident, before Germany can formally deposit its instrument of ratification with the secretariat of the European Council and finalize the procedure.
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It is not unlikely that another constitutional complaint will be filed this time.
Legal Committee
The UPCA draft legislation had been discussed yesterday by the Committee for Legal Affairs and Consumer Protection of the Bundestag, which recommended its adoption. The AfD was the only party voting against. Its request for a public hearing because of the “abundance of critical voices in literature about the agreement and the uncertainties due to the Brexit” was turned down.
The CDU/SCU stated that the primacy of Union law provided for in Article 20 of the UPCA is not in conflict with the German constitution or the Federal Constitutional Court’s competence to review compliance with minimum constitutional standards in the case of a transfer of sovereign rights to European or intergovernmental institutions.
The SPD stated that the distribution of competences of the Unified Patent Court, particularly those of the London division with a view to the UK’s exit from the European Union, can be regulated properly in the future in agreement.
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zoobab
FFII call to donate for a constitutional complaint is here: https://ffii.org/bundestag-vote-for-unitary-software-patents-ffii-call-on-software-companies-to-donate/
Attentive Observer
A black Thursday for legal correctness, and a bright Thursday for lobbyists of all kind. The decision is a legal disgrace and was only achieved by not giving the MPs the true and correct information. But this was to be expected. The EU has always been a playground for lobbyists, and we have a further example of it. . In German one could say: die Abgeordneten wurden hinter das Licht geführt und deren Augen mit Dreck beschmiert, freely translated MPs were misled and lured into a decision which they do not understand the ins and outs. The last word is not yet said, and even if the GFCC should dismiss a further complaint, the problems with the UPCA, starting with Art 7(2) UPCA, will backfire sooner or later. Do the promoters of the UPC honestly think that the other member States will simply accept the transfer of the duties of the London Section to Paris and Munich? The three contenders for the new seat will certainly be heard before long. There also many other open issues for the UPCA. The first party to lose in front of the UPC will find a way to go to the CJEU, which has never been asked whether the UPCA is in accordance with EU law. It is claimed that it is, but nothing is less sure. My grandfather used to say: “If you put your head in the sand do not wonder when your behind is getting smacked”. I hope he will be right once again.
zoobab
@Attentive Observer "The first party to lose in front of the UPC will find a way to go to the CJEU, which has never been asked whether the UPCA is in accordance with EU law. It is claimed that it is, but nothing is less sure." Or the ECHR for article 6 violation, as some lawyers have already suggested. The probability that it will explode at the first case will be pretty high.
zoobab
And by the way, the "democratic" parties changes their votes because they did not want to vote with the AFD. If the AFD would have voted ABSTAIN, the FDP, DieLinke and maybe the Greens would have voted against. So the AFD case seems to be a problem of german politics. But Attentive Insiders know we were really close of not reaching the 66% quorum.
Fragender
I hope that some interested party will make a constitutional complaint not only against the UPCA but also against the granting procedure of the UPs. After all, the UP is a EU-right but there is no *judicial* redress against a decision of the EPO rejecting an application (similar to the 4 complaints already on the docket of the BVerfG). Since the BoA themselves no longer pretend to be independent ("we don't want to decide, because we fear reprisals...") this might be an promising angle of attack (the same goes of course for both sides in opposition proceedings...).