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22 February 2019Patents

German court adds UPC constitutional complaint to case list

The German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) has placed the constitutional complaint disputing the legitimacy of the Unified Patent Court (UPC) on to its 2019 case list.

On Wednesday, February 20, the BVerfG  published the list of cases which it intends to decide this year.

The complaint, which was filed by Düsseldorf-based attorney Ingve Stjern, is placed fifth in a list of eight cases allocated to Justice Huber in the Second Senate.

In June 2017, the court  announced it was delaying Germany’s ratification of the UPC Agreement because of the complaint.

The following February, the BVerfG  agreed to hear the complaint, which questions the democratic accountability of the regulatory powers overseeing the UPC’s operation and the independence of the judiciary. Stjern also argued that the UPC breaches existing EU law.

However, although the constitutional complaint was listed in 2018, it was not decided and has been carried over.

“Cases have usually (but not always) been decided in the order listed, and the first two cases in Justice Huber’s list appear to be close to being decided, one having had an oral hearing in November and the other having been referred to the Court of Justice of the European Union (CJEU) which gave its decision in December,” said Bristows in a  UPC update.

The BVerfG could still dismiss the complaint, and it is not yet known when the case will be heard.

Peter Koch, legal director in Pinsent Masons’ Munich office, said that he expects the court to hear the case before the summer, but most likely not before Brexit.

He added: “If nothing else, the new listing shows that the German Federal Constitutional Court is not influenced by politics, and in particular Brexit.”

In January last year, the German Bar Association  claimed that the constitutional complaint is in part inadmissible and entirely unfounded.

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

Regardless of the decision in Germany, further complications will be caused by the UK’s upcoming departure from the EU.

Protocols will need to be amended to allow the UK to retain its membership of the UPC without being a member of the EU, and a UK refusal to acknowledge the supremacy of the CJEU could prove problematic.

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More on this story

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.
Patents
8 August 2019   The UK’s departure from the EU plays an “important role” in the further implementation process of the Unified Patent Court, according to the German government.