Long process around the UPC: a danger to democracy?

Düsseldorf, February 11, 2021 - The implementation of the Unified Patent Court (UPC) has already been blocked twice due to constitutional complaints (see C&F press release of 18 January 2021). In February 2020, the Federal Constitutional Court (BVerfG) in Karlsruhe had declared the law on the Unified Patent Court Agreement (UPCA) null and void because only about 35 of the more than 600 Members of Parliament were present at the vote in the German Bundestag. This had brought German ratification, which is crucial for the UPC to enter into force, to a standstill.

Nothing is known about the content of the complaints and the reasons for any unconstitutionality. The BVerfG must now re-examine the UPC legislation. In expert circles, this comparatively lengthy process is seen as a danger to democracy. Many UPC supporters are calling for a quick decision and more clarity, also in order not to jeopardise business confidence and ultimately the conclusion of ratification.

From COHAUSZ & FLORACK's (C&F) point of view, this reaction to the BVerfG's action is at least questionable. "As far as democratic decision-making is concerned, the drafting process of the UPC is certainly not exemplary, despite ratification by a large number of member states," admits Gottfried Schüll, patent attorney and partner at C&F. "Despite all the criticism, however, it should be borne in mind that the draft of the UPC is largely the work of international patent law firms - and not of democratically legitimised authors, such as the competent units of the ministries of justice of the individual member states. According to Schüll, "Democracy and the protection of the constitution should not be used here as a cover for the assertion of one's own interests. Rather, the effort to bring about the ratification of such a constitutionally relevant law via a simple majority among 35 members of the Bundestag present rather testifies to a dubious understanding of democracy and has rightly been criticised by the BVerfG.

Picture credits: H_Ko – AdobeStock