German Proposal to Proceed with UPCA Enactment a Second Time

As reported here, the German Constitutional Court ruled in March 2020 that the Bundestag did not effectively pass the Act of Approval of the Unified Patent Court Agreement (UPCA) rendering the Act of Approval void.

The UP/UPC system is an EU initiative to establish a Unitary Patent (UP) having unitary effect throughout the EU member states, and to establish the Unified Patent Court (UPC) to hear disputes relating to the Unitary Patent, and also relating to European patents having effect in the EU member states.

The German Ministry of Justice and Consumer Protection has now issued a new draft UPCA approval proposal for consultation with a three week deadline for comments. Notes accompanying the proposal suggest that UPCA approval can be successfully completed if a two-thirds majority of all eligible voters is achieved in both chambers of the German parliament. This means formal German ratification of the UPCA by the German President, the final ratification required for the UP/UPC provisional application phase (PAP) to commence, could be completed this year. This could allow the UPCA to enter into force in 2021 and for the UP/UPC to become operational.

Several commentators have suggested that further constitutional challenges to German ratification of the UP/UPC could be filed and so further delay the start of the UP/UPC. Even if further constitutional challenges are filed in Germany, it is unclear whether the German Constitutional Court would again ask the German President to withhold ratification as it did in 2017 when the first constitutional complaint was filed.