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German Federal Constitutional Court rules that Germany’s approval of the Agreement on the UPC is void

Today, the German Federal Constitutional Court (FCC) published its decision regarding a constitutional complaint regarding the Unified Patent Court (UPC). The Court ruled that the Act of Approval to the UPC agreement is void because it passed parliament without a two-thirds majority. The Court found that the Act of Approval affects the German Constitution (Grundgesetz) in substantive terms because it confers judicial functions on a supranational court. Therefore, its enactment would have required a qualified two-thirds majority. Even though the German Parliament (Bundestag) passed the Act, this was not done with the quorum now found necessary by the Constitutional Court. Therefore the Court ruled that the Act is void (but not unanimously, three Justices issued a Dissenting Opinion).

The Act of Approval may still come into force; the German Parliament could repeat the vote to pass the law with the necessary two-thirds majority. It remains to be seen whether the vote will be repeated and whether the UPC will still become active, especially in view of the UK´s earlier decision to not take part in the UPC system, since further changes of the UPC agreement might also have to be made because of the UK´s withdrawal. We will keep you posted on the aftermath of the FCC decision and what it means for the future of the UPC.

Press release by the Federal Constitutional Court: https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2020/bvg20-020.html;jsessionid=6C4E3FEF0E4DABD752960EE178D4B335.2_cid361

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Authors

Dr Stefanie Parchmann

Partner

Partner

German Patent Attorney

European Patent Attorney

Chemist