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The German Federal Constitutional Court (FCC) has decided that the act of approval to the UPC agreement is void because it was not approved by two thirds of the members of parliament (Bundestag). Such a majority is required for acts conferring sovereign powers such as judicial functions to the European Union or supranational organisations closely associated therewith. The FCC held that for this reason, the act violates the complainant’s constitutional right for democratic participation. In contrast, the FCC did not decide on whether the legal status of UPC judges is irreconcilable with the constitutional requirement of judicial independence. According to the FCC, the complainant had not sufficiently established that he would be affected by such a irreconcilability in his constitutional right for democratic participation.

The immediate effect of the ruling is limited. The UPC agreement would in its current form most probably not have taken effect anyhow after the UK has indicated that it will not participate. In this scenario, it is unlikely that Germany would have completed the ratification process before the agreement has been re-negotiated, e.g. regarding the location of the central division branch competent for chemical, pharmaceutical and life science cases. This will in all likelihood cause a substantial delay and require new acts of approval by the parliaments of the member states. Even if this is accomplished, in spite of the many conflicting interests of the member states, the substantive issues not (yet) decided by the FCC cause a significant uncertainty for the success of the project. This concerns in particular the fundamental principle of judicial independence, a concern which is likely to be raised in a new constitutional complaint with potentially more solid reasons and which is addressed in other pending constitutional complaints relating to the structure of the EPO. All in all, the prospects of the European patent package being implemented in the near future are currently low.

For the FCC’s press release in English, please go here

The full reasons (in German) can be found here