UPC: German Federal Constitutional Court upholds constitutional complaint
The Federal Constitutional Court of Germany (FCC) had decided that that the Parliamentary Act of Approval to the Agreement on a Unified Patent Court (UPCA) to confer sovereign powers on the Unified Patent Court (UPC) is void.
In essence, the Act of Approval to the Agreement on a Unified Patent Court (“the Act of Approval”) to confer sovereign powers on the Unified Patent Court is void, as it has not been approved by the Bundestag with the required two-thirds majority.
The draft of the challenged Act of Approval was adopted unanimously by the Bundestag in the third reading, but with 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 court concluded, with a 5:3 majority, that the Act of Approval had to be adopted by a qualified majority pursuant to Art. 79(2) GG. In view of the particular importance of the majority requirement for the integrity of the Constitution and the democratic legitimation of interferences with the constitutional order, a law cannot be enacted when it does not achieve this majority. Thus, the Bundestag did not effectively pass the Act of Approval. It is void.
According to a dissenting opinion, the requirement of a two-thirds majority is extended significantly into an area that was previously covered by Art. 24(1) GG. According to this constitutional provision, only ordinary federal law is required for the conferral of sovereign powers. Permitting a review of the formal aspects of conferral opens up further areas to dispute before the Constitutional Court. This will result in the narrowing of Parliament’s necessary political leeway in the context of European integration and the protection of the democratic process intended by Art. 38(1) first sentence GG may thus be turned into its opposite.
However, the decision concerns (only) the defective approval of the Act of Approval, not the Agreement on a Unified Patent Court itself.
Thus, the Bundestag could adopt of the Act of Approval with the required two-thirds majority or qualified majority pursuant to Art. 79(2) GG.
In a news release dated 20 March 2020 the Preparatory Committee of the UPC has already indicated that preparatory work will continue, while the decision and the way forward is further analysed.
Federal Constitutional Court press release 20 March 2020
View press release no. 20/2020 of 20 March 2020: Act of Approval to the Agreement on a Unified Patent Court is void. Order of 13 February 2020 - 2 BvR 739/17.
Decision of the Federal Constitutional Court of Germany (FCC)
Beschluss vom 13. Februar 2020 - 2 BvR 739/17 (German language).Read more
News release (www.unified-patent-court.org)
The Preparatory Committee of the UPC has indicated that preparatory work will continue.Read more