German Federal Constitutional Court declares UPC approval void

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

German Federal Constitutional Court declares UPC approval void

 German Federal Constitutional Court

In a ruling handed down this morning, March 20, Germany’s top constitutional court said the parliament did not approve the UPC legislation with the required two-thirds majority

Germany’s pre-ratification of the Unified Patent Court is void, according to a Federal Constitutional Court ruling handed down this morning.

The decision all but kills any realistic prospect of the project coming into fruition any time soon.

The long-awaited ruling declared that the act approving the UPC Agreement was not approved by the required two-thirds majority in Germany’s parliament, the Bundestag.

According to the FCC, the draft of the challenged act of approval was adopted unanimously by the Bundestag in the third reading but only by about 35 members. “Neither was the presence of the required quorum determined, nor did the president of the Bundestag declare that the act of approval had been adopted by a qualified majority.”

The FCC continued: “An act of approval to an international treaty that has been adopted in violation thereof cannot provide democratic legitimation for the exercise of public authority by the EU or any other international institution supplementary to or otherwise closely tied to the EU.”

Three of the court’s eight justices offered dissenting opinions. 

The timing of today’s judgment is in line with the estimate given to Managing IP by Justice Peter Huber. In an exclusive interview in November last year, Huber said the case would be decided in the first quarter of 2020.

The decision means the UPC now faces the real prospect of falling apart entirely. The constitutional challenge was seen as one of the major hurdles facing UPC ratification.

Germany, France and the UK were originally required to ratify it before it could come into force. 

Last month the UK ended speculation that it would remain a member of the UPC post-Brexit by revealing that it would not seek to participate in the court system and concurrent unitary patent project.

A spokesperson for the prime minister said participating in a court that applies EU law and is bound by the Court of Justice of the EU is “clearly inconsistent with our objective of becoming an independent self-governing nation”.

Shortly after that announcement, EPO president Antonio Campinos conceded that the proposed unitary patent may appear less attractive without the UK, but insisted that with the political will to make it happen, the project could still be a success.

Managing IP will bring you further in-depth analysis of the FCC’s decision and its ramifications in the coming days.

To view our recent UPC coverage, click on the links below:

UPC: The rocky road forward

UK’s UPC shun could spark EPO prosecution snub

UPC: Lawyers debate where the UK’s seat should go

UPC without UK still attractive to most businesses

Brexiting the UPC: What next for the UK? 

EPO president: UK’s UPC withdrawal 'not a decisive blow'

Confirmed: UK to shun unitary patent and UPC

more from across site and SHARED ros bottom lb

More from across our site

As Marshall Gerstein celebrates its 70-year anniversary, Jeffrey Sharp, managing partner, reflects on lessons that shaped both his career and the firm’s success
News of two pharma deals involving Novo Nordisk and GSK and a loss for Open AI were also among the top talking points
Howard Hogan, IP partner at Gibson Dunn, says AI deepfakes are driving lawyers to rethink how IP protects creativity and innovation
Vivien Chan joins us for our ‘Women in IP’ series to discuss gender bias in the legal profession and why the business model followed by law firms leaves little room for women leaders
Partner Jeremy Hertzog explains how his team worked through a huge amount of disclosure from Adidas and what victory means for the firm
Evarist Kameja and Hadija Juma at Bowmans explain why a new law in Tanzania marks a significant shift in IP enforcement
In the wake of controversy surrounding Banksy’s recent London mural, AJ Park’s Thomas Huthwaite and Eloise Calder delve into the challenges street artists face in protecting their works and rights
Alex Levkin, founder of IPNote, discusses reshaping the filing industry through legal tech, and why practitioners’ advice should stretch beyond immediate legal needs
Cohausz & Florack, together with Krieger Mes & Graf von der Groeben, has taken action against Amazon on behalf of three VIA LA licensors
In the fourth episode of a podcast series celebrating the tenth anniversary of IP Inclusive, we discuss unconscious bias in the IP workplace and how to address it
Gift this article