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UPC- Comment Dr Teschemacher – German Law on the Unified Patent Court Agreement null and void on the grounds of a legislative defect

20 Mar 2020

German Law on the Unified Patent Court Agreement null and void on the grounds of a legislative defect, Germany, Constitutional Court (BVerfG), decision of February 13, 2020, published March 20, 2020, case no. 2 BvR 739/17

Reported by Dr. Rudolf Teschemacher, Bardehle Pagenberg

The BVerfG declared the German Law on the Unified Patent Court Agreement (UPCA) as null and void. The German Bundestag had passed it without the 2/3 majority considered necessary by the Court. This formal deficiency may be remedied by new legislative acts if there is still sufficient political support. The decision was rendered with a 5 to 3 majority, it contains a dissenting opinion by three of the eight judges.

The complaint was also based on substantive reasons as the status of the judges and the appointment procedure for them allegedly not complying with the rule of law. The Court holds these attacks to be inadmissible, partly because not sufficiently substantiated, partly because of being outside the scope of review by the BVerfG in the specific proceedings.

As to the alleged violations of EU Law, the Court observes that the democratic principle laid down in the German Constitution as the applicable standard of review is not violated. EU Law does not contain any formal or substantive requirements which could cast doubt on the validity of a German Act or even violate the identity of the German Constitution.

However, the Court leaves open whether the standard of review might be different with respect to the fundamental rights as laid down in the European Charta of Human rights if a legal point is exclusively dealt with in European law in the process of European integration. In the present case, the UPC is an international body on its own outside EU Law. However, this argument does not apply to the two Regulations on the unitary patent.

Nothing can be taken from the decision as a hint to the possible outcome on the 4 complaints pending before the BVerfG against the allegedly deficient system of judicial review before the Boards of Appeal of the EPO. This aspect is not addressed by the BVerfG although the Boards of Appeal are integrated into the unitary patent system being the authority deciding in last instance proceedings on the validity of unitary patents in opposition proceedings.

As to the further fate of the ratification of the UPCA by Germany, the declaration of the Government has to be kept in mind that the factual and legal consequences of a withdrawal of the UK from the UPCA had to be examined and coordinated on a European level. This process of forming an opinion had not yet been concluded, not least because essential factors of the expected withdrawal are still unknown. In this respect, nothing has changed since the Government’s declaration.

The decision (in German) can be accessed here.