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Berlin UPC rejection
Nieuws 13 jul 2021

The path for the UPC in Germany is cleared by rejection of complaints to the German Constitutional Court

Geschreven door Rolf Suurmond
Dit artikel is alleen beschikbaar in het Engels. For those of you following the ongoing events in the path for ratifying and implementing the UPC (Unified Patent Court) Agreement, you will be aware of the delay in Germany since 2017.

The Agreement on the UPC is a core part of new European patent system. This would differ from the current EPO system by providing a European patent with a unitary effect across the participating EU member states. The UPC will be the common court for procedures related to the unitary patents and will have decisive powers with unitary effect.

In the current system, a European patent may be granted centrally but it then splits into a bundle of national patents that act independently in each validated member state. The improvement and ease of the new system is therefore highly desired and long awaited.

A complaint was filed against the UPC in Germany on several grounds. A first ground being that the first ratification was against the procedures of the German Parliament for ratifying the UPC without receiving the required majority according to the German constitution. This ground was deemed well-founded, so that the procedure by the German Parliament had to be repeated. The required majority was achieved on 26 November 2020 by the lower house of the German Parliament and approved by the upper house on 18 December 2020

As of 23 June 2021 the complaints have been dismissed. Therefore, there appears to be no further roadblock to the issuance of the UPC law in Germany

Directly after the second approval by the German Parliament, new complaints were filed, after which the signing of the ratification law was postponed again The complaints were based, among others, on the argument that the rights under the Basic Law (Art. 38(1), art 20(1)-(2) and Art 79(3) Grundgesetz [GG]) are violated. These rights relate to the fundamental right to effective legal protection and principles of precedence of EU laws. The alleged violation is in that the precedence of the EU law under Art. 20 of the UPC Agreement and the independence of UPC judges are in contradiction with the fundamental rights enshrined in the German constitution in Art. 79(3) GG.

The German Constitutional Court considered that the two new constitutional complaints were inadmissible, because they were not sufficiently substantiated, and no such conflict could be seen to exist. The judge commented that the referenced articles of the UPC Agreement do not change the status quo in the EU relationship to member states and merely clarify doubts about compatibility of the two legal systems. The judgement makes the assurance that the German State still has the autonomy to uphold its Constitution.

Thus, as of 23 June 2021 the complaints have been dismissed. Therefore, there appears to be no further roadblock to the issuance of the UPC law in Germany.

The EPO currently projects the UPC system to start in 2022. It is not yet clear if the withdrawal of the UK from the Agreement will result in further delays, as there are still some open issues to resolve, including the relocation of the London branch of the Central Division to a participating EU member state.

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