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German Federal Constitutional Court declares UPC approval void

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

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