BREAKING NEWS: German Constitutional Court rejects second challenge to UPC

In a press release published today, the German Constitutional Court announced that it rejected the latest constitutional challenge against the 18 December 2020 ratification act for the Unified Patent Court (UPC) [press release here, decision here]. 

As readers will recall, this is not the first time the ratification of the UPC Agreement by the German government gave rise to constitutional challenges. In February of last year, the German Constitutional Court upheld a challenge against the initially proposed ratification act [here, Katposts here and here]. But the Contitutional Court's 2020 decision was based on more or less procedural concerns, which were quicly remedied by the German legislator. A new act, this time with proper quorum, was passed by the German Bundestag in November 2020.

A fresh constitutional challenge was filed against the second ratification act, but that challenge was now rejected by the Constitutional Court.

The main grounds for the decision are summarized in the press release. In brief:

• The Constitutional Court held that the transfer of judicial authority to the UPC would not unduly impair the right to self-governance, enshrined in Article 20 of the German Constitution. In particular, the Constitutional Court held that this article does not entitle individual citizens to review legislative acts, democratically adoped by a parliamentary majority (at 55). On this point, the complaint merely stated that UPC judges are appointed for a six year term but can be re-elected and that there is no effective means to remove them from office. According to the Constitutional Court, the complaint did not explain how this violated the right to self-governance (at 59). Consequently, this ground could not succeed.
• Likewise, general objections to the UPC, such as its likely treatment of software patents or the fact that the UK may no longer participate in it, were insufficient to constitute an infringement of any constitutionally guaranteed right (at 67-71)
• The Constitutional Court further held that Article 20 of the UPC Agreement, which lays down the primacy of European Union law following the European Court of Justice's decision in Opinion 1/09, does not constitute a transfer of power to a supranational body beyond the limits of the German Constitution. Rather, the Constitutional Court held, it confirms the primacy of European Union law -- accepted also in the German consitutional order -- in the context of the UPC (at 77).

And so the second complaint was rejected. Although the road to the UPC was long and rocky, it seems that the Constitutional Court's decision clears the way towards the long-awaited entry into force of the UPC system. But let's not hold our breath just yet, as the Agreement must still be amended to overcome the United Kingdom's (rather unfortunate) decision not to partake in the UPC [Katpost here].

Karlsruhe has spoken once more on the UPC--but was it for the last time?