The German Constitutional Court upholds Unified Patent Court complaint

Today (20 March 2020) the German Federal Constitutional Court (the “Court”) has declared Germany’s decision to pass the Act of Approval to the Agreement on a Unified Patent Court (“UPC”) to be void. The Court has thereby upheld the constitutional complaint filed against the German UPC legislation.

The Court concludes that the Bundestag’s decision to pass the Act of Approval to the UPC Agreement amends the German constitution in substantive terms which would have required the decision to have been adopted by a qualified majority of the Bundestag (two-thirds). This since the decision confers sovereign powers from German courts to the UPC.

Although the decision was taken unanimously by the Bundestag members present at the time, the decision was not taken by two-thirds of all members of the Bundestag.

It now remains to be seen what consequences the decision will have for the UPC. Although the error can be rectified by the Bundestag organizing a new vote on the Act of Approval, with the correct majority, this could significantly delay the UPC process further.

The Court’s decision comes shortly after the UK confirming that it will not be part of the UPC. The future of the UPC thus remains unclear.

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