Manuel Rey-Alvite Villar and Lisa Schneider (Rechtsreferendarin seconded to Bristows)
Reports published in the last 24 hours suggest that the Federal Constitutional Court of Germany (Bundesverfassungsgericht, BVerfG) has requested the Office of the President of the Republic to temporarily refrain from signing and submitting for publication the draft legislation required for Germany to ratify the Agreement on a Unified Patent Court (UPC). As reported here, the German parliament has already passed the relevant legislation, but it will not come into force until it has received the signature of the President and is published in the Federal Law Gazette.
According to the reports, the BVerfG’s request was made on 3 April 2017 in the context of a challenge to the constitutionality of the legislation enabling the ratification of the UPC Agreement filed by an unnamed private individual (docket number 2 BvR 739/17). The grounds of this challenge have not yet been published. The reports suggest this was an informal request, taking the form of a telephone communication followed by a written request (also unpublished). A formal interim decision has therefore not yet been issued, although there is a pending application for provisional measures. The BVerfG would be expected only to have issued the request on the basis that the challenge could not be found to be totally without merit from the outset. However, the Court has reportedly not yet conducted a more substantial assessment of the merits of the underlying challenge.
The timescales going forward are presently unclear, but this move by the BVerfG does not necessarily mean that additional delay to the start of the UPC is inevitable, still less that there will be a final decision of the BVerfG finding that Germany cannot lawfully ratify the UPC Agreement.
We will provide a further update as more details about the challenge are known.