German Federal Constitutional Court declares UPC approval void

Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

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

Exclusive data reveals law firms are failing to go above and beyond for their corporate clients, with in-house counsel saying advisers should consider more transparent billing processes
Arty Rajendra and Gary Moss discuss why ‘thorough and intense’ preparation, plus the odd glass of wine, led to a record FRAND victory for their client
Monday’s coverage includes news of a potentially 'game-changing' trademark development in China and how practitioners are using AI
Managing IP gives a taster of the numbers behind this year’s IP STARS trademark rankings, and looks back at our 2025 award winners
Updates from IP offices, the shifting requirements of in-house counsel, and news of London 2026 were among major talking points on Sunday
Etienne Sanz de Acedo discusses the association’s three-year plan, what he is looking forward to in San Diego, and why London came calling for 2026
Professionals from three organisations reveal what led them to sponsor Brand Action and why doing so can build camaraderie
The results of a UK government consultation on the exhaustion of IP rights and an annual review published by the EPO’s Boards of Appeal were also among the top talking points this week
The decision disregards Perlmutter’s work at the US Copyright Office and comes at a time when strong leadership and expertise are crucial
Sources say the decision to fire Shira Perlmutter raises constitutional concerns and speculate on what the decision could mean for the country’s approach to AI
Gift this article