Germany's Federal Constitutional Court "Bundesverfassungsgericht" (BVerfG) has reportedly asked the German President not to progress Germany's ratification of the Unified Patent Court (UPC) Agreement, due to a constitutional complaint.
Who filed this complaint, and on what grounds, are as yet unknown. It could be based on one or more potential incompatibilities between the German constitution and the UPC such as language or sovereignty issues and/or the legal status of the UPC judges. Until the complaint has been published, we can only speculate as to the possible reasons for this latest obstacle along the UPC road although our German and UK patent teams are monitoring developments closely.
As things stand, the UPC cannot commence until Germany and the UK have ratified the UPC Agreement (see our previous blog here). Neither country has completed the ratification process so far although both have consented to the protocol on the Provisional Application Period which allows for various activities to take place before the UPC officially commences, e.g. judicial recruitment and pre-commencement opt-outs.
The UPC Preparatory Committee announced earlier this month that the UPC will not now commence by December 2017 as expected. Considering this latest development in Germany, as well as the continuing uncertainty surrounding the UK's own ratification plans and ability to participate in the UPC following Brexit, it is hardly surprising that the Preparatory Committee has not yet announced a revised target date for commencement.
We can only hope that the BVerfG will manage the German constitutional proceedings swiftly in order to minimise further disruption to the establishment of the UPC. A further update will follow as soon as we have more information although some commentators have suggested that details of the German constitutional case may not be published "until the end of 2017"….where have we heard that one before?
The authors wish to thank Benjamin Grzimek of Fieldfisher's Dusseldorf office for his contribution to this blogpost.