German ratification void – UK is out

The German Federal Constitutional Court has ruled today that the German Parliament’s approval of the Agreement on a Unified Patent Court is void, as it has not been approved by the Parliament with the required two-thirds majority. The Court dismissed the complaint with regard to the assertion that the agreement on the UPC violates fundamental democratic rights and the principle of separation of powers. The road for German’s participation in the UP/UPC project seems to be paved, insofar as the required two-thirds majority in favour of the legislation presumably exists.

Press release by the German Federal Constitutional Court.

The most significant hurdle for the UP/UPC project seems to be the fact that the UK will not participate (which might in principle have been possible despite of Brexit). In a statement on 27 February, a spokesperson for 10 Downing Street said: “The UK will not be seeking involvement in the UP/UPC system. Participating in a court that applies EU law and is bound by the CJEU is clearly inconsistent with our objective of becoming an independent self-governing nation.” As the agreement on the UPC lays down that the Central Division of the Court will be partially based in London, the agreement presumably has to be reopened and ratified anew in the participating States.

For the moment, a likely scenario is that the UP/UPC project will continue with Germany on board, but without the UK, albeit only after legislative renegotiation.