Unified Patent Court

Breaking: German UPC legislation challenged again by constitutional complaints

The Federal Constitutional Court has again received two complaints against the German UPC legislation. The identity of the plaintiffs is currently unclear, as is whether German ratification of the Unified Patent Court will now have to be halted again. Germany is the last country to ratify the UPC before the new court can start.

22 December 2020 by Mathieu Klos

German constitutoinal court The judges of the German Constitutional Court have received again complaints against the UPC. It's yet unclear whether they will decide on them or not. ©picture alliance/dpa/Uli Deck

Another chapter has been added to the endless UPC saga. Two constitutional complaints were filed last Friday against the German ratification law for the Unified Patent Court. This was confirmed by the spokesman of the German Constitutional Court responding to a request from JUVE Patent.

The highest German court apparently received the two complaints (case IDs: 2 BvR 2216/20 and 2 BvR 2217/20) shortly after the German Bundesrat approved the German UPC legislation. The second chamber of the German parliament had unanimously passed the laws on 18 December. Prior to this, the German Bundestag had approved them with the necessary two-thirds majority. This cleared the way for the completion of the German UPC ratification and the launch of the UPC as a whole.

It is currently unknown who the claimants are. The Constitutional Court did not provide any information on this matter. However, in the run-up to the votes in the German parliament, two groups had hinted at potential lawsuits.

In November, Foundation for a Free Information Infrastructure (FFII) took a combative stance, calling on companies to join forces to file a constitutional claim.

Furthermore, the plaintiff of the successful first constitutional claim also continues to follow the ratification process on his website. Following the Constitutional Court ruling in March, he too had speculated on a company’s claim against the UPC.

Neither party responded to to JUVE Patent’s inquiries.

Impact on ratification remains unclear

It is also not known at present which grounds of appeal the two unknown claimants cite against the UPC laws. The Constitutional Court also here provided no information. Nor did it comment, when asked by JUVE Patent, on whether it will accept the complaints at all and ask the Federal President to halt the ratification process again.

To complete German ratification, federal president Frank-Walter Steinmeier must now sign the law in order for it to enter into force.

As a last step, the Federal Government must deposit the instrument of ratification with the European Council.

However, the UPC member states agreed some time ago that the German government will wait with this last step until the preparations for the UPC launch have been completed. The deadlock over the UPC in recent years, and the UK’s withdrawal from the project, have, for example, made the selection process of the UPC judges more difficult.

Second constitutional challenge for the UPC

With the announcement of the two complaints, history has repeated itself. The German parliament had approved the UPC legislation in 2017. But a constitutional complaint by Düsseldorf lawyer Ingve Stjerna had led to the Federal President suspending the signing of the UPC documents in June 2017 and the UPC process had to be halted until today.

In March 2020 the Constitutional Court then stopped the ratification of the German UPC laws. A new approval by the German parliament became necessary. The German Constitutional Court required that both chambers of the parliament approve such international agreements with a two-thirds majority.

Ingve Stjerna had criticized various aspects in his first complaint, including the voting process in the Bundestag.

However, critics noted that the Constitutional Court’s ruling in March 2020 also addressed other possible points of contention. (Co-author: Christina Schulze)

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