“A drawn-out UPC process would damage democracy”

Once again, the Federal Constitutional Court must rule on the German Unified Patent Court law - and it must do so quickly. After all, a drawn-out process would be more damaging to democracy than to the UPC itself.

19 January 2021 by Mathieu Klos

UPC process The German Constitutional Court in Karlsruhe, where the UPC process is under scruinty ©Klaus Eppele/STOCK.ADOBE.COM

Yet again, only ten months after the judges stopped the German government’s first ratification process, the UPC legislation is coming under the scrutiny of the German constitutional judges. Since March 2020, the government and both chambers of the German parliament passed the UPC laws with the required two-thirds majority.

The German Bundesrat passed its final vote on 18 December. However, shortly afterwards, external parties filed two complaints with the German Constitutional Court. These complaints were no surprise. Furthermore, under German constitutional law, it is not unusual in Germany for a law to be examined twice.

Majority remains for UPC

Therefore, the judges must examine the grounds for the complaints closely. Above all, however, the judges must decide quickly. This is because, from what JUVE Patent hears from sources close to those involved, the complaints contain hardly any new aspects. No-one other than the complainants, the court and the other constitutional bodies have yet seen the complaints – not even the JUVE Patent editorial team.

But if our information is correct, the judges in Karlsruhe will essentially have to rule on questions familiar from the first complaint – or questions raised by the judges themselves in their UPC ruling.

A speedy procedure is also necessary, because the German parliament has already deliberated and voted on the laws twice. Only very few members of the parliament criticised or opposed the UPC during the debates in the Bundestag or Bundesrat. Ultimately, at a constitutional level, the will of the people still comes first. The majority in both chambers was overwhelming. Furthermore, a majority of the German business community remains in favour of the UPC.

There is no question that the judges in Karlsruhe must thoroughly examine serious, constitutional concerns about transferring national powers to a supranational court. But detail-obsessed concerns must not jeopardise the completion of ratification. The majority who remain loyal to the UPC have a right to know where they stand.

Ball is in the Constitutional Court

Federal president Frank-Walter Steinmeier has once again halted the ratification process at the request of the Constitutional Court. This too is a normal process. It does not allow any conclusions to be drawn about how the court will assess the complaints.

JUVE Patent is aware that the German government intends to quickly deposit the instrument of ratification for the protocol on the provisional applicability of the UPC with Brussels. This should set in motion the preparatory work for the UPC. The government plans to send the instrument for the actual agreement to Brussels once UPC preparations are complete.

This is what the government has agreed with the other UPC member states. Four months after Germany takes this step, the court must actually open its doors.

European consensus

The UPC contracting members still want the UPC. This is another reason why the Constitutional Court must rule quickly on the urgent applications, and just as quickly in the principal proceedings. The concerns are known, and Germany’s constitutional judges must provide clarity.

The UPC must not ultimately fail due to a time problem. That would be constitutionally worrying.