German Constitutional Court's Decision in Re Unified Patent Court Agreement

German Constitutional Court at Karlsruhe by Tobias Helfrich - Own work,
CC BY-SA 3.0,

Jane Lambert

German Constitutional Court (President Voßkuhle and Constitutional Court Judges Huber, Hermanns, Müller, Kessal-Wulf, König, Maidowski and Langenfeld) Re Unified Patent Court Agreement  2 BvR 739/17 Order of 13 Feb 2020 (20 March 2020)

On 19 Feb 2013 the governments of 25 European Union member states including the United Kingdom signed the Agreement on a Unified Patent Court ("the Unified Patent Court Agreement").  That agreement provided for a single patent court for the territories of all the contracting countries to be known as the Unified Patent Court ("UPC").  The UPC would resolve disputes relating to European patents in the contracting countries' territories including European patents covering all the contracting countries as a single territory to be known as "unitary patents".

Art 89 (1) of the UPC Agreement provided:

"This Agreement shall enter into force on 1 January 2014 or on the first day of the fourth month after the deposit of the thirteenth instrument of ratification or accession in accordance with Article 84, including the three Member States in which the highest number of European patents had effect in the year preceding the year in which the signature of the Agreement takes place or on the first day of the fourth month after the date of entry into force of the amendments to Regulation (EU) No 1215/2012 concerning its relationship with this Agreement, whichever is the latest."

Instruments of ratification and accession have been received from more than 13 member states including France on 14 March 2013 and the United Kingdom on 26 April 2018.  The only impediment to the entry into force of the UPC Agreement is ratification by Germany.

On 20 June 2016, the German government introduced bills in the German Federal Parliament for the ratification of the UPC Agreement (Gesetz zu dem Übereinkommen vom 19. Februar 2013 über ein Einheitliches Patentgericht (BT Drucks 18/8826)) and the amendment of German patent law to take account of European patent reform (Gesetz zur Anpassung patentrechtlicher Vorschriften auf Grund der europäischen Patentreform (BT Drucks 18/8827).  The bills were passed by both houses of the German Parliament and sent to the President for his assent. Before the President could sign the bills into law, proceedings were instituted in the German Federal Constitutional Court (Bundesverfasserungsgericht) challenging the constitutionality of the legislation and requesting an interim order restraining the ratification of the UPC Agreement until after the Court had considered the merits.  In accordance with German constitutional practice, the Court asked the President not to sign the bills until after the Court had reached its decision.

On 20 March 2020, the Second Senate of the German Federal Constitutional Court published its judgment giving reasons for its order of 13 Feb 2020 to declare the ratification statute void (2 BvR 739/17).  German cases are usually cited by their cause numbers rather than the names of the parties.  As remembering a case by its cause number is unfamiliar to English speaking readers, I have referred to the case as Re The UPC Agreement but that is not how it would be cited in Germany.   The format of the judgment is very different from an English one.  As it is many years since I studied German at secondary school, I cannot guarantee the accuracy of my translation.  However, the objection seems to have been that the Bundestag (the lower house of the Federal legislature) was inquorate.  That seems to be  confirmed by the Court's English language press release:

"The draft of the challenged Act of Approval was adopted unanimously by the Bundestag in the third reading but only by about 35 members of the Bundestag present. 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 decision was not a unanimous one.  There was a powerful dissenting judgment from Judges König, Langenfeld and Maidowski.

The report begins with a short headnote summarizing the reasons for the decision of 13 Feb 2020. It continues with the name of the Court, the cause number, the eagle which is the emblem of the Federal Republic and the words "In the name of the People" followed by "in the application for judicial review by Dr S ..........  in relation to the statute ratifying the Unified Patent Court Agreement and the unitary patent".  "Application for judicial review" is a very free translation of the word "Verfassungsbeschwerde" but I think it is the nearest term that we have to the German proceeding.  I believe "Dr S" to have been Dr Ingve Björn Stjern, a German intellectual property lawyer.

The order itself records that art 79 (2) of the German Constitution requires a two-thirds majority in both houses of the Parliament for any amendment of the Constitution.  Art 23 (1) of the Constitution indicates that any transfer of sovereign powers from Germany to the European Union constitutes an amendment of the Constitution.   It follows that such a transfer requires a two-thirds majority in each house.  As the UPC Agreement would have transferred sovereign powers from Germany to the EU in respect of patent litigation the statute ratifying the Agreement would have required a two-thirds majority.   As that did not happen because the lower house was not quorate, the ratification statute is null and void.   As the Court has now made a decision on the merits, the interim measures were no longer necessary.  The German government was ordered to pay the applicant's costs.

The rest of the very lengthy judgment contains the majority's reasons and the minority's dissent. The first part of the judgment analysed the UPC Agreement and the unitary patent regulation.  It traced the history of attempts to establish first a Community patent, then a European Union patent, an optional litigation protocol within the framework of the European Patent Convention and finally the UPC and the unitary patent.  The judgment reproduced the Agreement in full and the legislative history of the ratification bill.

In his application to the Constitutional Court, the applicant alleged that the Agreement violated his rights under art 38 (1) of the Constitution when read with art 20 (1) and art 2 in conjunction with art 79 (3).   Art 38 (1) provides:

"Members of the German Bundestag shall be elected in general, direct, free, equal, and secret elections. They shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience."

Art 20 (1) states that "The Federal Republic of Germany is a democratic and social federal state."  Art 2 confirms his right to personal freedom and art 79 (3) to the inalienability of his rights under art 2.  The relevance of those provisions is not immediately obvious to an English lawyer but it may be that an applicant for a Verfassungsbeschwerde has to establish some kind of locus standi in order to institute proceedings. If that is so, his case appears to be that his country is a representative democracy conferring inalienable personal freedoms.  His application was held to be admissible which entitled him to request the interim measures mentioned above.

The substance of his claim was that only 38 MPs were in the chamber of the lower house when the ratification bill had its final reading and that 45 were required for a quorum.   Without a quorum, the bill could not have been passed with a two-thirds majority in the Bundestag as required by art 79 (2) of the Constitution.   The applicant also criticized aspects of the Agreement such as the method of selection of the judges and their 6-year appointment which allegedly undermined their independence. Additionally, the applicant alleged that the UPC Agreement was contrary to EU law and requested a reference to the Court of Justice of the European Union under art 267 of the Treaty on the Functioning of the European Union.

Responses to the application were invited from the Federal Government, both houses of Parliament and all state governments.  So, too, were the Federal Bar Association, the German Lawyers' Association, the President of the European Patent Office, the German Association for Intellectual Property and Copyright Law (GRUR eV), the European Patent Lawyers Association, the European Patent Litigators Association and the Federation of German Industries in accordance with § 27a BVerfGG (Constitutional Court's rules) given for comment.  Each of those respondents except the Bundesrat, state governments and Federation of German Industries filed submissions which are discussed in the judgment.

The majority of the Second Senate accepted the applicant's submission that the UPC Agreement required the transfer of sovereign powers from Germany to a supranational institution.  Such a transfer of powers was a constitutional change that required a two-thirds majority in both houses of Parliament.  Although the bill ratifying the Agreement was passed unanimously by the MPs present, there were not enough of them to form a quorum.  The minority took the view that the formation of the UPC was not a major constitutional change and that a qualified majority was not essential for transactions of this kind.

The immediate reaction when this judgment was published was one of despair.   This was mine before I had read the judgment:
However, all may not be lost. If the problem was the lack of a two-thirds majority there is nothing to prevent the German Government from introducing another ratification bill and making sure that there are enough parliamentarians in each of the houses of Parliament to vote the measure through. That is surely less of a problem than our government's volte-face  (see Jane Lambert Volte-Face on the United Patent Court Agreement 29 Feb 2020 NIPC News).  But even here there may be room for hope.  The EU Justice Sub-Committee in the House of Lords has been scrutinizing the policy (see Meeting of 10 March 2020   After this country emerges from the CORVID-19 emergency it will need to rely on international trade more than ever.  There is likely to be much less appetite to erecting barriers to trade with our biggest and nearest trading partner than there was before.

As everybody in chambers including the clerks is now working from home, anybody who wants to discuss this article, the UPC agreement or patents generally during the public health emergency should contact me initially through my contact form.  If a chat would be appreciated I should be very glad to respond by VoIP or phone.


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