Germany, Federal Constitutional Court (FCC), Order of 23 June 2021, published on 9 July 2021, case nos. 2 BvR 2216/20 and 2 BvR 2217/20

Reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

The FCC rejected the two applications for preliminary injunction directed against the Act of Approval adopted on 18 December 2020 for ratifying the UPC Agreement. Since all other parliamentary requirements have already been fulfilled the German Federal President is no longer prevented from signing the law which allows the Government to deposit the instrument of ratification.

In its reasoning, the FCC states that the complaints lodged in the principle proceedings are inadmissible since the complainants did not sufficiently substantiate the possibility that ratifying the UPC framework could indeed result in the rule-of-law principle, the fundamental right to effective legal protection, or EU law being violated in the asserted manner.

In particular, the complainants failed to demonstrate why and how the UPC Agreement, in its organisational structuring of the Unified Patent Court and in the legal status afforded judges, could violate the principle of the rule of law enshrined in Art. 20(3) of the German Constitution (GG) in a manner that would also encroach upon the principle of democracy. Demonstrating an encroachment upon the principle of democracy would have been necessary given that it is this principle alone, enshrined in Art. 20(1) and (2) GG, that gives rise to the individual right of democratic self-determination that can be invoked by citizens through Art. 38(1) first sentence GG.

Read the decision (in German) here.
Read the press Release here.