Yesterday evening, the Bundestag (German parliament) debated a motion by the AfD (Alternative für Deutschland, Alternative for Germany) political party calling for the repeal of two acts enabling Germany to participate in the Unified Patent Court (UPC) and unitary patent system. As reported here, the motion claimed that the legislation is unconstitutional, relying on two of the grounds also present in the constitutional complaint against the same legislation currently pending before the Federal Constitutional Court (BVerfG). In summary: (i) that, when approved unanimously by the Bundestag, only 35 (of 630) legal members were present whereas a two thirds majority was required, and (ii) that the judges of the UPC will lack independence (due, for example, to the procedure for selection and appointment and also a short – 6 year – term of office). A transcript of the debate of AfD’s motion was published today (here, starting at page 1722). The motion was opposed by all groups other than AfD. The result of the debate is that the matter has now been referred to the relevant parliamentary Committees for further consideration. These Committees include the Legal Committee; the Committee for Economy and Energy; the Committee for Education, Research and Technology Assessment; and the Committee for EU Affairs.

Some of the highlights of the 40 minute debate were as follows. Mr Roman Reusch moved the motion for AfD, using his time to stress the point that the Bundestag vote on the UPC legislation was unconstitutional. He expressed the view that the constitutional complaint would succeed on this point, and called for the Bundestag to take the initiative in repealing this legislation before that happens. Representatives of all the other parliamentary groups spoke in defence of the constitutionality of the vote and the UPC system. Mr Ingmar Jung, for CDU (Christlich Demokratische Union, Christian Democratic Union), accused AfD of pushing this motion as part of its anti-EU agenda, and specifically addressed AfD’s point concerning lack of judicial independence, present in the written motion but not raised in Mr Reusch’s oral presentation. Mr Jung noted that the presence of legal practitioners in the UPC Advisory Committee, which inter alia must prepare a list of proposed UPC judges for the consideration of the Administrative Committee, does not in any way hinder the independence of the judges ultimately selected. He stressed that the presence of representatives from the relevant industries is not only commonplace but necessary in preparatory bodies such as the Advisory Committee, and that the decision to appoint the judges is only taken by a body of representatives of the participating Member States such as the UPC Administrative Committee. On behalf of SPD (Sozialdemokratische Partei, Social Democratic Party), Dr Nina Scheer highlighted that the legislation had been passed unanimously by those present, i.e. it was materially and legally approved by all political groups in the last legislature. Also for SPD, Ms Sonja Steffen noted that, in preparing the Bundestag’s submissions in the pending constitutional complaint, its legal advisor had consulted with representatives of all parliamentary groups, including AfD, which at the time did not voice any of the concerns now raised in this motion. Representatives from FDP (Freie Demokratische Partei, Free Democratic Party); Die Linke (the Left); and Die Grünen (The Greens) also expressed their opposition to the motion, highlighting the benefits of the unitary patent and UPC system, and noting that the issues raised by the motion will be addressed by the BVerfG in due course, whereas agreeing to AfD’s motion would only have the effect of delaying the determination of the issues in those proceedings.