After these first proceedings, the main question was how the Federal Constitutional Court would assess Art. 20 UPCA, which had been regarded as critical. Art. 20 UPCA postulates the primacy of EU law over the provisions of the Agreement itself, as a reaction to Legal Opinion 1/2009 of the Court of Justice of the European Union, which had found the predecessor project of the UPCA not to be in conformity with EU law. The UPCA signed in February 2013 therefore had to make clear that the UPCA cannot override EU law. This unconditional reservation of EU law had been critically questioned in the FCC’s decision of 13 February 2020 (para. 166), without a decision being required at the time.
It is therefore all the more gratifying that the FCC has now taken a clear position on this. First of all, it elaborates (paras. 74, 75) that in almost all EU states there are “reservations of control under European constitutional law” which oppose an “unrestricted primacy of application of Union law”. Very clearly, the FCC states: “The […] requirements of the Basic Law bind all constitutional bodies […] and may neither be relativised nor undermined.
For the understanding of Art. 20 UPCA, the FCC then explains (para. 77) that it “is intended to dispel doubts as to the compatibility of the Agreement with Union law, but it is not a matter of regulating the relationship between Union law and national constitutional law beyond the status quo”. The FCC comes to the convincing conclusion that “Art. 20 UPCA does not concern the relationship between Union law and national constitutional law […].”
The FCC also comments – albeit very briefly – on other points of attack of the constitutional complaints. With regard to the six-year term of office of the judges at the UPCA and the possibility of their re-election, the FCC states (para. 60) that terms of office limited in time with the possibility of re-election are the rule at international courts. This had to be taken into account, so that that the complainants did not sufficiently argue as to which minimum constitutional requirements had to be met. In the view of the FCC, breaches of Union law by the UPCA cannot be challenged by means of a constitutional complaint (para. 70). Insofar as the complaint was that the Agreement could not be brought into force with the withdrawal of the United Kingdom from the EU, this only concerned the interpretation of the Convention and not possible requirements of the Basic Law (margin note 71).
As a result, the FCC thus approves the UPCA and significantly strengthens it. Admittedly, a considerable and regrettable delay had occurred due to the two proceedings pending since 2017. On the other hand, the UPCA can now start without constitutional doubts preventing users from filing actions with the Unified Patent Court. This is undoubtedly an outstanding starting advantage.
According to the Preparatory Committee, Germany will now ratify the Protocol on Provisional Applicability of Institutional Provisions in the autumn. Two more member states are still missing, but they will probably follow in autumn, at the latest at the beginning of 2022. The Preparatory Committee expects the provisional phase to start at the beginning of 2022. This phase is expected to last eight months. In the course of this phase, the so-called “sunrise period” will also begin, during which opt-out declarations can be submitted to the registry.
