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15 January 2018Patents

German Bar Association says UPC complaint is unfounded

The German Bar Association (DAV) has issued an opinion (pdf) saying that a constitutional complaint against the Unified Patent Court (UPC) is entirely unfounded.

Filed last year, the complaint has put the brakes on Germany’s ratification of the UPC, as the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) continues to consider the filing.

Düsseldorf-based attorney Ingve Stjerna is believed to have filed the complaint, questioning the democratic accountability of the regulatory powers overseeing the UPC’s operation and the independence of the judiciary, and arguing that the UPC is in breach of existing EU law.

The complaint also argued that that the German UPC ratification law amends or supplements the Constitution, which would require a majority of two thirds of the Bundestag (Parliament) to pass it. However, the law was allegedly passed by a smaller majority than this.

Constantin Kurtz, partner at law firm Klaka in Düsseldorf, told WIPR that DAV believes the complaint is inadmissible insofar as it’s based on an alleged violation of EU law.

“The bar association says that the complaint is also inadmissible as far as it is based on the violation of constitutional provisions governing the organisation of the law-making process,” he added, citing articles 23(1) and 79(2) of the Constitution.

As Kurtz noted, DAV—which has around 65,000 members—says the appellant cannot base the complaint on an alleged violation of these provisions as the appellant’s rights conferred to him by the Constitution have not been breached.

He said that not everyone has standing to file a complaint with regard to any violation of the Constitution, and that because only those whose own rights have been violated can bring a complaint, “the bar says that the issue whether or not the law establishing the UPC would fall within the scope of article 23 and 79 was not an issue which could violate the appellant in his rights and thus his complaint would be inadmissible in this regard”.

The complaint prompted BVerfG to ask Germany’s Office of the President not to sign the law on ratification while the case was being dealt with, a request which the presidential office has agreed to.

Germany must ratify the UPC in order for it to be implemented.

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More on this story

Patents
24 August 2017   Germany’s Federal Constitutional Court has revealed details of a constitutional complaint that has delayed the country’s ratification of the Unified Patent Court Agreement.
Patents
13 June 2017   The German Constitutional Court (Bundesverfassungsgericht) has delayed the ratification of the Unified Patent Court (UPC) Agreement.
Patents
23 October 2018   The German attorney who filed a constitutional complaint against the legitimacy of the Unified Patent Court has said that it would be surprising if his complaint was judged inadmissible.