The German Constitutional court has today delivered its answer to the question as to whether the new European Unified Patent Court (UPC) is constitutional under German national law. The answer is no.
This was a challenge raised by an individual, a German lawyer, and the court’s decision is final with no appeal possible. Any reversal of effect can only now come from new law of the German parliament itself. We understand that a two thirds majority is needed in favour of any such new law on constitutional matters such as this. Some commentators indicate that this is very possible given that on its first passage through the German parliament it was voted through unanimously, although they caution that this happened because there was almost no one there when the vote was taken.
The challenge in its substance related to what the applicant believed was a surrender of sovereignty to an unelected court. Although played out with respect to questions about patent law and its effects, the thrust of the arguments will be familiar to those who followed the detail of much of the Brexit argument in the UK over the last few years.
The German court’s decision is of course not the first such challenge that the UPC has faced. A similar case was raised in Hungary. In June 2018, the Hungarian constitutional court, ruled that the whole Unitary Patent Package violated the Hungarian constitution and therefore could not be ratified. However, whilst interesting, the decision of the Hungarian court does not have the consequence or effect that the recent decision in Germany will have. This is because for implementation, ratification of all of France, Germany and the United Kingdom is needed.
The decision is important, not least because buildings have been built, judges have been trained and fees have been set and procedures have been written. It is a package put together painstakingly over decades (in one form or other) and yet it seems now that it may have been scuppered at the very last.
This news is hot off the press and so quite what the overall ramifications and outlook will be for the new UPC once the dust settles, are somewhat murky. Perhaps a way round will be found by the passing of a new law in the German parliament. However, without the UK, which recently announced that after Brexit, it wanted to play no part in it due to the overarching jurisdiction it would give to higher EU courts, the viability or commercial significance of the UPC was already seriously damaged. People will now ask if, without Germany as well, it can get off the ground at all.
Those interested in more detail should refer to the IPKat blog which itself links to many other commentaries and original sources.