The German Federal Constitutional Court (which is the country’s “supreme court” for all matters constitutional) has ruled that the 2017 ratification of the Unified Patent Court (UPC) agreement in Germany’s parliament was unconstitutional.
The UPC agreement is an integral part of the project to create a unitary patent covering almost all of the EU. Until it is ratified the unitary patent cannot come into existence.
The judges ruled that because the UPC agreement required a transfer of adjudication powers from Germany to the new court system, a two-thirds majority was required in the Bundestag (German parliament). The ratification however was passed by a simple majority, meaning that it was unconstitutional.
While Germany could re-ratify the UPC agreement (assuming a two-thirds majority can be secured in the German parliament), the political landscape has changed considerably since 2017 – notably because the UK is no longer a member of the EU. This causes several problems:
- The UK, which had ratified the agreement, has now declared that it has no intention of participating in the system or of submitting to the jurisdiction of the Court of Justice of the EU.
- The UK, even if it wanted to participate, cannot do so. There is broad consensus that the agreement is limited to EU members. Changing this would require a renegotiation of a treaty that took years (some say decades) to hammer out originally, and there is no reason to expect a renegotiation to be straightforward.
- If the UK does not take part, the economic justification for the system is severely weakened.
- The UPC agreement explicitly requires one of the three major courts to be seated in London. This is politically unacceptable if the other members proceed without the UK. The home for this court could also be changed in a renegotiated agreement but several countries are expected to fight tooth and nail for such a plum prize.
Therefore, while the German court’s decision might in other circumstances represent only a temporary stumbling block, which in theory is easily cleared by re-ratifying the treaty in the Bundestag, the political reality is that the prospect of a unitary patent for Europe is probably as far off as ever it was.