by Dr. Simon Klopschinski

On February 13, 2020 the German Federal Constitutional Court decided that the German law ratifying the Agreement on a Unified Patent Court is void (see here). In the meantime the Constitutional Court has issued another sentence which deals with the European Central Bank’s bond-buying programme (see here). On May 13, 2020 the daily newspaper Frankfurter Allgemeine Zeitung (FAZ) published an interview with Judge Huber, who was involved in both proceedings as judge rapporteur, on the ECB decision, in which Judge Huber also commented on the court’s UPC verdict.

In its ECB decision the Constitutional Court decided that it was not bound by a previous CJEU ruling. Therefore, the European Commission is currently thinking about initiating infringement proceedings against Germany under Article 258 TFEU. When asked by FAZ on this issue Judge Huber made the following comment on the primacy of EU law and the court’s UPC verdict:

Die EU-Kommission prüft ein Vertragsverletzungsverfahren. Ist das nicht unausweichlich?
Unausweichlich ist das keineswegs. Vielmehr hat die Kommission insoweit einen politischen Ermessensspielraum. Dabei sollte sie zur Kenntnis nehmen, dass Deutschland und die meisten anderen Mitgliedstaaten der Europäischen Union gar nicht hätten beitreten dürfen, wenn es den vom EuGH angenommenen schrankenlosen Anwendungsvorrang des Europarechts vor dem Grundgesetz gäbe. Das haben wir auch in der Entscheidung zum Einheitlichen Patentgericht im Januar noch einmal deutlich gemacht.“

(source: Frankfurter Allgemeine Zeitung, May 13, 2020, p. 2, see here)

Translation:

The EU Commission is examining an infringement procedure. Is that not inevitable?
It is by no means inevitable. On the contrary, the Commission has political discretion in this respect. In doing so, it should note that Germany and most other Member States of the European Union would not have been allowed to join the European Union at all if the unrestricted primacy of European law over the Basic Law, as assumed by the CJEU, would exist. We made this clear once again in the decision on the Unified Patent Court in January.”

In its decision of February 13, 2020 the Constitutional Court had left open the question whether the unconditional primacy of EU law, as stipulated in Article 20 of the UPC Agreement, violates the German constitution, even though the court held that there may be indications for such a finding (see para. 166 of the decision).

Judge Huber’s comment in the FAZ reaffirms that the Constitutional Court’s reservations against the UPC Agreement are not limited to the formal errors which were made when passing the German ratification act in parliament. Rather, it appears that the court’s concerns also relate to the substance of the UPC Agreement. Thus, if the second attempt to ratify the UPC Agreement is confined to organizing the required two-thirds majority in parliament (and some formal rectifications due to Brexit), the fate of the UPC Agreement in another constitutional complaint before the Federal Constitutional Court will remain uncertain.


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6 comments

  1. It will be interesting to see how the question regarding the unconditional supremacy of EU (case) law is resolved with regard to Germany. One option might be to amend the Basic Law … but that might not help in all cases as it is hard to see how such an amendment could apply retroactively.

    However, perhaps of more immediate interest will be whether, despite the clear views expressed by the FCC, any of the UPC’s supporters will continue to lobby the German government to pass legislation enabling ratification of the UPC Agreement. The answer to this is likely to depend upon whether those supporters are prepared to actively encourage the German government to pass a law that would almost certainly be unconstitutional.

    1. Dear Concerned observer,

      re point 1: Bearing in mind that, ultimately, it’s the function of the BVerfG to have the last say on what is (un)constitutional in Germany, do you really think the court would uphold such an amendment as constitutional, thus bowing to the ECJ? Almost certainly not.

      Re point 2: You know the answer to your questions. Masks have long fallen and [they] have no chance other than going ‘all in’, riding a horse that is obviously as dead as it can be. But don’t worry. I would assume that the UPCA will be back on the BVerfG’s table very quickly, should the need arise.

  2. Most of the proponents of the UPC have tried to ignore the danger lying in § 166 of the decision of the FGCC. The present blog sheds a much more differentiated view on the matter of constitutionality of the UPC in view of the German Basic Law. It is thus to be welcomed.

    All the proponents of the UPC have been touting that the entry into force of the UPC is on the doorstep, and the ratification bill should be presented anew as quickly as possible before the German Parliament. That they ignored the problems brought about by Brexit is just an aside. Some are still in favour of the participation in the UPC of non-EU member states….

    Should the ratification bill be presented once more before the parliament, it is to be hoped that its members will be informed of the position of Justice Huber. The same applies to the Federal Minister of Justice who published, most probably following intense lobbying, a press release claiming that the bill will be presented again to the parliament during the present legislature. As if the parliament had nothing more urgent to deal with at the moment.

    The only worrying aspect is the fact that the new president of the GFCC is a staunch supporter of the UPC. He was member of a large firm of lawyers heavily engaged in litigation, and has constantly lobbied in parliament in favour of the UPC. He apparently earned much more through his job as lawyer than from its wages as MoP. Some groups have contested its nomination as chairman of the GFCC for this reason.

    Should the question of the constitutionality come back before the GFCC, it is to be feared that it waives through the ratification bill. This could particularly be the case should Justice Müller have come to the end of its appointment to the FGCC.

    The GFCC would just have a “dynamic” interpretation of its own case law…. Any resemblance …..

    Techrights and zoobab: FINGERS OFF!!!

  3. If Germany ratifies the UPC now, there will be breach of the AETR jurisprudence.

    The European Commission should intervene, as long as the UK is still signatory of the agreement.

  4. The question to the Commission makes it clear that in all probability, the participation of the UK has to be clarified before Germany can ratify the UPC. It would in any case make no sense for Germany to ratify the UPC as long as feat of the London section of the Central Division has not been clarified.

    If the UK decides not to officially withdraw from an agreement it has already ratified, it might indeed blow up the UPC if what is expressed in the question to the Commission is correct. This is the more so since there is no express withdrawal possibility foreseen in the UPCA.

    Blowing up the UPC would be in line with what has been uttered in some UK circles: let’s develop a litigation system which can be more attractive than the UPC, and which is independent from any decision of the CJEU.

    I am curious to hear what Mr Tilmann, Poors, Hoying and consorts will have to say about this threat.
    This is the more so since Mr Hoying has been advocating in IPKat to “try to draft a text that would make it possible for European Economic Area countries and perhaps even other countries to join”. In doing so he seems to have forgotten what Opinion C 1/09 said.

    http://ipkitten.blogspot.com/2020/03/willem-hoyng-todays-decision-sets-back.html

    But this did not withhold Mr Tilmann to claim that C1/09 is no hindrance to maintain post-Brexit UK in the UPC. One should however not forget that he claimed earlier that the UPC is only open to EU member states. Let’s put it this way. Mr Tilmann adopted a “dynamic” interpretation of C 1/09. Any resemblance…..

    Techrights and zoobab: FINGERS OFF!!

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