A ruling of the German Federal Constitutional Court complicates Germany’s indispensable ratification of the Unified Patent Court Agreement, as the United Kingdom’s government announces that it is no longer interested in taking part: is this the final blow for the supranational European patent court?

The decision of the German Federal Constitutional Court

On 13 February 2020 Germany’s Federal Constitutional Court issued its ruling in the appeal filed in 2017 (more here) against the national law of ratification of the Agreement on a Unified Patent Court (hereinafter, “the Agreement”).

The appeal was grounded on several arguments, the first of which being that German law requires two thirds of members of parliament to approve the ratification act, which had in fact been approved with only 35 MPs present.

The ruling, published on 20 March 2020, upheld the appeal and declared the ratification act null and void, confirming that the act amends the German constitution and that its approval by parliament therefore requires a two-thirds majority.

The United Kingdom turns its back on the Unified Patent Court

The United Kingdom ratified the Agreement on 26 April 2018. The UK government at the time maintained that the country would have continued to be a member of the Unified Patent Court notwithstanding Brexit, although it was never explained how it intended to overcome the prohibition, set out in the Agreement’s text, against membership of states not belonging to the European Union (more here).

On 27 February 2020 a government spokesperson told the press that the United Kingdom would no longer be seeking involvement in the Unified Patent Court system, as “participating in a court that applies EU law and bound by the Court of Justice of the European Union is inconsistent with our aims of becoming an independent self-governing nation”.

What future for the Unified Patent Court?

The Agreement itself sets forth that ratification by Germany is a necessary condition for its entry into force.

The German minister of justice has stated that the Federal Government is examining the Constitutional Court’s decision with the aim of proceeding with ratification of the agreement.

Germany will have start the ratification procedure anew in order to get the act approved by two thirds of parliament, a majority not easy to achieve; but one may wonder whether it is still worth ratifying the Agreement in its current form.

It is in fact very likely that the United Kingdom’s exit from the European Union will make it necessary to amend the Agreement’s text, regardless of the stand taken by the British government.

Negotiating amendments will take time, and the new text of the Agreement will need to be ratified again by signatory states, a process that could take several years and be slowed down by further constitutional appeals.

The actual opening of the Unified Patent Court therefore appears threatened by considerable difficulties, which according to some experts will prove insurmountable and therefore fatal; it is perhaps early to be certain about that, but it is a fact that more than seven years after the Agreement was signed, the Preparatory committee is still unable to name a date on which the court will become operational.

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