German parliament hears motion to repeal UPC laws
German members of parliament (MEPs) yesterday debated a motion to repeal legislation which allows Germany to ratify the Unified Patent Court (UPC) Agreement, after far-right political party Alternative for Germany (AfD) called for the re-debate and repeal of the laws.
The Bundestag debated the motion yesterday, March 15, before referring the matter to the Legal Affairs Committee as planned.
However, the debate did not bring up anything new according to Thomas Adam, partner at Simmons & Simmons’ Munich office.
Having watched the debate, Adam said the main issue is really the “anti-European sentiment within the AfD” rather than substantive opposition to the UPC itself, and so “in the end, this motion is going to fail”.
Matthias Weiden, associate in Bird & Bird’s Düsseldorf office, agreed. “The motion does not seem to have any prospect of success,” he claimed.
Adam said that the AfD claimed the legislation is unconstitutional based on two main arguments.
First, when the legislation was approved unanimously by the Bundestag in March 2017, only 35 (of 630) MEPs were present in parliament. The AfD reportedly argued that the acts embody a change of the German constitution by transferring sovereignty to a non-German entity, and that this requires a two-thirds majority.
But, Adam said, Germany’s constitutional law (article 23 and 24) allows for the transfer of sovereign rights to a non-German entity without such a majority.
Second, the AfD alleged that the judges of the UPC will lack independence due to the selection procedure, which involves an advisory committee composed of individuals including patent practitioners, and a limited appointment term.
Because of the presence of the practitioners on the committee, judges may be inhibited from providing a neutral judgment when the practitioners appear in court, the AfD allegedly argued. Adam described this argument as “extremely farfetched”.
Adam explained that, in the debate, MEPs said this demonstrates the lack of trust the AfD has in Germany’s legal system.
Also, Adam claimed, during last night’s debate MEPs alleged that the AfD’s arguments have been taken directly from a complaint due to be heard by Germany’s Constitutional Court (Bundesverfassungsgericht, BVerfG) later this year.
The complaint, which disputes the legitimacy of the UPC, was filed by Düsseldorf-based attorney Ingve Stjerna. Germany’s Office of the President agreed not to sign the law ratifying the UPC while the case is being dealt with.
Adam explained that parliament had decided unanimously to retain counsel to file a brief with the BVerfG defending the act and requesting that the complaint be denied.
He said MEPs accused the AfD of “contradicting their own behaviour” by first supporting the filing of a brief and now filing a motion to repeal UPC law. “If they had any issues with the act they should have voiced them earlier, when they had the opportunity,” he added.
Weiden confirmed that “all other parties” defended the UPC legislation. He said “several” speakers criticised the AfD for “not voicing their alleged concerns in committee, when the Bundestag agreed to support the laws”.
The AfD’s motion has now been referred to the Legal Affairs Committee. In Adam’s opinion, given the opposition the motion received during the debate “nothing will come of it”.
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