Today, new details emerged regarding the grounds of the pending challenge to the constitutionality of the German legislation enabling the ratification of the Agreement on a Unified Patent Court (UPC). As previously reported, an unnamed private individual filed this constitutional complaint (No. 2 BvR 739/17) with the Federal Constitutional Court of Germany (Bundesverfassungsgericht, BVerfG) shortly after the relevant UPC legislation was passed by the Bundesrat on 31 March 2017. The substantive challenge was accompanied by an application for provisional measures, which is still pending. Having noted that the challenge could not be found to be totally without merit from the outset, the BVerfG made an informal request to the Office of the President of the Republic to temporarily refrain from signing and submitting for publication the draft legislation, preventing it from coming into force until the application for provisional measures has been decided.

According to information provided by a spokesperson for the BVerfG to Dr Thorsten Bausch (Hoffmann Eitle) and published on the Kluwer Patent Blog, the challenge is based on grounds that the relevant legislation exceeds the limits on the transfer of sovereignty under the constitutional right to democracy derived from Art 38(1) of the Basic Law for the Federal Republic of Germany (Grundgesetz, GG). The challenge asserts the following alleged breaches:

  • Breach of the requirement derived from Arts. 23(1) and 79(2) GG that the adoption of legislation amounting to a transfer of sovereign powers to European institutions must be decided by a qualified majority of two thirds of the Members of the Bundestag (German parliament) and the Bundesrat (Federal Council).
  • Democratic and rule of law deficits with regard to the legislative powers of the organs of the UPC.
  • Lack of independence and democratic legitimacy of the judges of the UPC.
  • Incompatibility of the UPC with EU law.

The spokesperson for the court was not able to provide an estimate of when the BVerfG will render its interim decision.