Act of Approval to the Agreement on a Unified Patent Court is void
On 20 March 2020 the German Federal Constitutional Court (FCC) has declared the German law ratifying the Agreement on the Unified Patent Court (UPC Agreement) to be void.
In 2017 a constitutional complaint against the German act of parliament approving the UPC Agreement has been filed which was based on the argument that the approval of the UPC Agreement requires a two-thirds majority in parliament. In fact, merely 35 members of parliament attended the vote on the statute in the Federal Diet. In order to wait for the outcome of the constitutional complaint, the Federal President neither executed the statute approving the UPC nor notified the ratification to the European Commission.
The FCC’s decision now issued upholds the constitutional complaint. Basically, the decision is founded on Art 23(1), Art 79(2) of the German Constitution (Grundgesetz) which requires approval by a two-third majority in both chambers of parliament, i.e. the Federal Diet and the Federal Council. The FCC regards the act ratifying the UPC Agreement to be an equivalent to an amendment of the treaties establishing the European Union. Since the Federal Diet did not pass the statute with the required majority, it did not comply with Article 23(1) of the Grundgesetz and therefore the statute is void.
The FCC does not say that the UPC Agreement as such is unconstitutional, meaning that the German legislature could well pass a new act ratifying the very same UPC Agreement when complying with the requirement of a two-third majority. As the other complaints have been declared inadmissible, the present ruling may cause nothing more than a further delay for the UPC Agreement to come into force, if not the UK intention not to participate in the UPC, will cause to fundamentally rethink the project.