Act on the Convention Establishing a Unified Patent Court Declared Invalid

Düsseldorf, 20 March 2020 – Today the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) declared the Act on the convention establishing a Unified Patent Court (EPGÜ-ZustG) null and void. The EPGÜ-ZustG would have transferred sovereign rights to the Unified Patent Court (UPC), which would have resulted in a substantial constitutional amendment. However, it was not passed by the Bundestag with the necessary two-thirds majority.

The BVerfG decided on the basis of a constitutional complaint and justified its decision by the fact that, in order to secure their democratic influence in the process of European integration, citizens are in principle entitled to have sovereign rights transferred only in the forms provided for this purpose by the German Constitution. According to a press release issued by the Federal Constitutional Court, a statute requiring assent on an international treaty that was passed in violation of this right could not democratically legitimise the exercise of official authority by the European Union or by an intergovernmental institution in a complementary or other special relationship with it.

The constitutional complaint filed in March 2017 had brought the German ratification of the UPC to a standstill and called into question the entire project of the UPC. "As a result of the decision by the BVerfG, the UPC has now been stopped for the foreseeable future, with a justification that was rather to be expected," says Gottfried Schüll, patent attorney and partner at Cohausz & Florack. "The required two-thirds majority could theoretically be achieved. However, after Brexit, the necessary political will is now lacking. In addition, the judgement also clarifies that Great Britain as a non-EU member can no longer participate in the UPC system. Further grounds for invalidity were also not conclusively decided. Thus, the generally desirable standardisation of European patent law has most likely failed for the time being."

Headerbild: Klaus Eppele -AdobeStock