The decision has rightly met with considerable criticism. In essence, the following points of criticism can be identified: The Federal Constitutional Court did not consider it necessary to schedule an oral hearing prior to a negative decision, in which it would have been possible to point out gaps and errors in the Senate’s arguments and to correct them if necessary (see also Winfried Tilman, in: GRUR 2020, 441). On the other hand, there is a lack of substance in crucial passages, and the premise under which the change in case law is considered permissible is simply conjured up. Finally, and this weighs most heavily, the Federal Constitutional Court has taken three years to allow the Act on Approval to fail on formal grounds. Three years which represent an eternity for an international project. The Federal Constitutional Court has thus put the Federal Government and the Federal President in an awkward position internationally.
In addition, interviews such as that of the judge rapporteur Huber in the Frankfurter Allgemeine Zeitung of 12 May 2020, according to which it was made clear once again in the UPCA decision that the primacy of European law could not be applied without restrictions, have created little confidence. This is also regrettable and shows little tact.
In its decision, the Federal Constitutional Court claims without justification that the competences to be transferred to the UPC are a non-reclaimable transfer of sovereign rights. The fact that the United Kingdom will not participate in the UPC despite ratification already speaks against this. Withdrawal is therefore legally and factually possible without doubt. There was thus no reason to draw a line between this and existing court practice. Also, the transfer of competence to the UPC under Art. 83 UPCA is fluid, as the national court systems remain competent for seven years; for national patents they even remain exclusively competent. Also, any formal defect could have been remedied in the phase of provisional applicability. The prerequisites for the creation of a new legal instrument of formal transfer control were therefore certainly not in place. If, however, doubts about the formal constitutionality of the law arose, the Federal Constitutional Court, which deliberately has hardly any democratic legitimacy, would have had to take up its criticism of the democratic legitimacy of a unanimous vote in the Bundestag far more quickly in such a situation, in order to give the democratically elected institutions the opportunity to correct this error. A decision after three quarters of a legislative period, especially on shaky legal arguments, undermines the democratic structure.
It is not without reason that the Federal President, in his farewell speech to Prof. Voßkuhle (albeit with a view to the ruling on the European Central Bank), admonishes: “I hope for cooperation rather than confrontation between the institutions.” Obviously, the Federal President was not able to fully come upon this ability to cooperate at the Federal Constitutional Court.
This is also true because the Federal Constitutional Court answers the question of whether the creation of the Unified Patent Court would entail a material amendment of the Basic Law in a single sentence when it postulates that this is “obvious”. Thus, the depth of reasoning has shrunk to a questionable minimum. The Federal Government, the Bundestag, and a whole series of institutions had always taken a stand on this question and had come to a different conclusion. The Federal Constitutional Court does not even deal with this. This also harms the democratic and legal discourse.
It is also regrettable that the Federal Constitutional Court does not conclusively clarify a number of points. Thus, with regard to the legal status of the UPC judges and the selection and appointment procedure, one can assume that the UPC judges are in conformity with the Basic Law. However, the question has not been finally decided.
The same applies to the powers of the UPC administrative board. The Federal Constitutional Court states that an equal participation of Germany in the decisions of the Administrative Committee is in principle ensured and that these decisions require a majority of three quarters, and that Germany also has a veto right in the case of revisions of the Convention. The court also points out that the regulations on the procedure as well as on the decision-making powers of the UPC cannot be changed by the Administrative Committee, an extension of the competences of the UPC by the Administrative Committee is not possible, and the Federal Constitutional Court also does not criticise the regulations on the reimbursement of costs in Art. 69(1) UPCA and Art. 41(2) sentence 2 UPCA.
But here, too, the Federal Constitutional Court does not take a final decision because of the inadmissibility of the complaints, thus opening up the possibility of a new constitutional complaint.
The Federal Constitutional Court does not make a final statement on the question of whether the establishment of an unconditional primacy of Union law in Article 20 UPCA violates the Basic Law. However, Art. 20 UPC is a consequence of the priority of EU law as demanded by the European Court of Justice in its Opinion 1/2009 of 8 March 2011 and thus an indispensable part of the UPC (see Haberl, Schallmoser, GRUR-Prax 2011, 143). There is therefore much to suggest that the Federal Constitutional Court would only declare this provision unconstitutional if its application by the UPC and the ECJ should result in a violation of the Basic Law.
All in all, one can only regret the Federal Constitutional Court’s action. The Federal Constitutional Court should have recognised that the adverse consequences that have now occurred could have been avoided, at any rate by milder means. Thus, it would have been obvious not to block the execution of the law, but to block the deposit of the ratification document by the Federal Government. In particular, this would have made it possible to start the phase of provisional application of institutional provisions and to bring the project out of its deadlock. In the context of a temporary injunction, the doubts about the formal legality could have been expressed and corrected immediately.
The procedure therefore raises the question of whether the interaction between the constitutional bodies is still functioning satisfactorily. It must be remembered that the Federal Constitutional Court has caused serious damage to the project of a unified European patent system, above all because it did not examine the formal conditions for transfer in advance and quickly and bring this point to a speedy decision, for example in a temporary injunction. The Federal Government, Bundestag and Federal Council had assumed that the Act on approval did not require a 2/3 majority. The Federal Bar Association and the German Bar Association also agreed with this view. Almost all of the statements were already available at the end of 2017. After the Federal Constitutional Court had already asked the Federal President in April 2017 not to promulge the Act, it would have been appropriate to take up and work through the formal aspects of the act of transfer in a first step. A constitutional body cannot and must not allow itself three years for this. Loyalty to the institution and respect for democratically elected parliaments would have made it necessary to take a decision quickly.
The annulment of the Act of Assent on purely formal grounds after almost exactly three years leaves a serious damage in the fabric of the constitutional organs. If the Federal Constitutional Court recognises a formal error, but at the same time sees that, due to the support of the project in the Federal Government and the given majority situation in the Bundestag and Bundesrat, the newly formulated formal requirements could have been met quickly, it seems strange that the Federal Constitutional Court has not, by means of a speedy decision, put the ball back in the court of the competent constitutional bodies much earlier, but has instead taken almost an entire legislative period to do so.
The Federal President should also have clearly pointed out the risks that result from an excessively long duration of the proceedings. After all, the Federal President is under the obligation to make a decision under Article 82(1) of the Basic Law and, according to general opinion, must at all events issue the document within a reasonable period or expressly refuse to do so.
Perhaps one should have been warned in the case of a judge rapporteur who had already mentioned the word “coup d’état” in connection with the Maastricht Treaty. In any case, it is lasting that a majority could be found in the Senate for this – albeit a narrow one – which would expose all other constitutional bodies and the Federal Republic of Germany internationally. It cannot be right that the Federal Constitutional Court at any rate makes policy so clearly and blatantly. There is no way around the feeling that the Federal Constitutional Court and, above all, the judge rapporteur, were concerned to put as many obstacles as possible in the way of a project that was not approved by the Senate.
In the meantime, the Federal Government has drafted a new bill. This also takes up the criticism of Art. 20 UPC, but rightly takes the position that the primacy of EU law should not be a problem for Germany’s ratification.
With regard to the Brexit, the draft law is of the opinion that the central division in Paris as well as the branch in Munich could replace the department of the central division in London (which has been abolished) by simple means of interpretation of the UPCA. This is correct and also welcome (see also Tilman, loc. cit.).
The approval law is expected to be passed before the end of this legislative period, possibly even in 2020. In the meantime, the majority situation in the 2nd Senate of the Federal Constitutional Court has also changed: Prof. Voßkuhle has resigned and the Second Senate is now headed by Prof. Doris König, who in her dissenting opinion has taken a very critical view of the decision of the Federal Constitutional Court. It therefore remains to be hoped that the newly introduced Act on Approval can be executed by the Federal President. Then the approximately eight-month phase of provisional applicability could begin at the end of 2020 or the beginning of 2021, and the UPC could begin its work as a newly established court towards the end of 2021. For, it has been heard that the Federal President will probably not suspend its execution once again at the request of the Federal Constitutional Court.
