The deadlock on the unified patent convention

In its decision of 13 February 2020, published on 20 March 2020, the Federal Constitutional Court decided in response to a constitutional complaint that Article 1 I 1 of the Act of Approval to the UPCA (Act of Approval) was unconstitutional and thus void (I.). Otherwise the Court dismissed the constitutional complaint as inadmissible (II.). However, one important aspect was left open by the Federal Constitutional Court (IV.).

A. The key points of the decision

The Federal Constitutional Court held that the constitutional complaint in question was inadmissible in its major parts. However, the complainant had the right to sovereign powers being conferred only in the forms provided for by the Basic Law (so-called review of the formal aspects of conferral). In particular, a two-thirds majority in parliament had to be achieved for a conferral of sovereign powers. Since these formal requirements were not adhered to in the legislative process for the Act of Approval, the complainant's right equivalent to a fundamental right to democratic self-determination under Articles 38 I 1, 20 I, II, 79 III of the Basic Law had been violated and the Act was therefore null and void.

In its decision, the Federal Constitutional Court also states that the Convention is open exclusively to Member States of the European Union. According to this view, the United Kingdom cannot participate in the Unitary Patent and the Unified Patent Court after the Brexit (see below V.).

It remains unanswered as to whether the determination of the unconditional primacy of Union law in Article 20 UPCA violates Articles 20 I and II in conjunction with Article 79 III of the German Basic Law. This question has been left open by the Federal Constitutional Court, since the unconstitutionality and nullity of the law already result from the formal constitutional requirements. In order to clarify this general question, a new constitutional complaint of an individual is inadmissible even after the present decision of the Federal Constitutional Court for lack of direct concern for the individual (see below VI.).

B.        Does the European Patent Convention still have a future?

At first sight, the requirement of the two-thirds majority that is currently lacking could be satisfied by a new vote with the required majority.

However, with regard to the Federal Constitutional Court's express statement in para. 166 that that it left open whether there might be a violation of Art. 20 I and II in conjunction with Article 79 III of the Basic Law on the basis of the unconditional primacy of Union law, as provided for in Article 20 UPCA, on account of the unconstitutionality already established elsewhere, it should be clear that a mere re-ratification of the UPCA with the required 2/3 majority might possibly only be the beginning of a new game. Although the Federal Constitutional Court in general took a UPC friendly approach on the questions it decided (see below C.II.), it remains an uncertainty how it would consider the issue of the unconditional primacy of Union law.

One could take the chance now to renegotiate the UPCA as anyway it must be considered how to continue without the United Kingdom. It would not be surprising if such re-negotiation and re-ratification of the UPCA by all Member States will take significant time.

Against this background, it seems questionable whether the UPCA has a near future. In any case, it will need the strong political will and effort of all Member States, and in particular in Germany, to go on with the project without the United Kingdom and to push it forward.

C.        The decision in detail

I.          2/3 majority requirement for ratification of the UPCA

The Federal Constitutional Court held that the constitutional complaint was admissible insofar as the appellant asserts a violation of his rights by infringing the requirement of a qualified majority for the Act of Approval under Articles 23 I 3, 79 II of the German Basic Law. According to these provisions, a parliamentary law with a two-thirds majority is required for the establishment of the EU, amendments to its Treaties and all comparable regulations. However, the German Federal Government explained in a statement submitted to court on 15 December 2017 that this only applied to qualified transfers of sovereign rights with structural constitutional relevance. According to the Federal Government, this was not the case with the Act of Approval challenged by the constitutional complaint.

However, the Federal Constitutional Court sees things differently. According to the Court, a "comparable regulation" as required by Article 23 I 3 of the Basic Law also consists of a law ratifying an international treaty supplementary to or otherwise closely tied to the EU´s integration agenda. If such a law makes substantive constitutional amendments at least possible, a two-thirds majority in the German Parliament is required. The conferral of sovereign powers to the EU or any other international institution supplementary to or otherwise closely tied to the EU regularly entails such a substantive constitutional amendment if the conferred competences are finally lost. The Act of Approval confers judicial functions on a supranational court and sets out that this court has exclusive competence to decide on certain legal disputes. Furthermore, the decisions of the UPC are declared enforceable in any Contracting Member State. Thereby a final transfer of competence takes place.

The UPCA is also supplementary to or otherwise closely tied to the EU´s integration agenda. It is open exclusively to member states (see also below III.) and replaces law regulations by the EU in this matter. Direct primary law basis of the Agreement is Art. 262 TFEU. It provides for the conferral of jurisdiction on the European Court of Justice in disputes relating to European intellectual property rights. However, the unanimous decision of the European Council required for this was not taken for lack of political will. The procedure pursuant to Art. 262 TFEU is a special process of amending the EU's Treaties. Effectively, the UPCA is an amendment or replacement of Art. 262 TFEU. Therefore, it is itself of constitutional relevance and constitutes a “comparable regulation” within the meaning of Art. 23 I 3 of the Basic Law.

The fact that the conferral of judicial functions to a newly created intergovernmental institution creates a substantive constitutional amendment is also apparent from the associated, methodologically indispensable power to further develop the case law. On the basis of this substantive constitutional amendment, a two-thirds majority is therefore imperatively required for the Act of Approval pursuant to Article 23 I 3, 79 II of the Basic Law.

Although the draft of the Act of Approval was unanimously adopted in its third reading on 10 March 2017, only 35 members of parliament were present at that time. Therefore, the required qualified majority was not achieved. An act of approval to an international treaty that has been adopted in violation of the constitutionally prescribed procedures violates the citizens' right equivalent to a fundamental right to democratic self-determination derived from Articles 38 I 1, 20 I, II, 79 III of the Basic Law. If sovereign rights are not conferred in the procedures provided by the Basic Law, they are not transferred at all. However, without an effective conferral of sovereign powers, each subsequent measure issued by the EU or a supranational organization would lack democratic legitimation. Therefore citizens can demand that sovereign powers be conferred only in the forms provided for by the Basic Law. This “review of the formal aspects of conferral” is derived from the principle of democracy and serves to secure democratic influence in the process of European integration.

The Judges König, Langenfeld and Maidowski did not agree with this view and stated in a dissenting opinion that the “right to democracy” does not give rise to a right to review the formal aspects of conferral. Such a right would lead to a fundamental extension of the rights derived from Article 38 I 1 of the Basic Law that fails to recognise its substance and limits.

However, the creation of this “review of the formal aspects of conferral” has met with considerable resistance even within the senate of the Federal Constitutional Court. Thus the judges König, Langenfeld and Maidowski stated in a dissenting opinion that review of the formal aspects of conferral was a fundamental extension of the right under Article 38 I 1 of the Basic Law, which failed to recognise its substance and limits. This review did not serve to protect the right to democracy from a disempowerment of the Parliament, but was a general control of legality. However, the substance of the right to democracy was not encroached upon by a mere formal error.

II.         Lack of the complainant's right to file a complaint

On the other hand the Federal Constitutional Court states that the constitutional complaint is inadmissible on the grounds of lack of authority to file a complaint, insofar as the complainant alleges a possible violation of his right under Article 38 I 1 in conjunction with Article 20 I and II in conjunction with Article 38 I 2. 79 III of the Basic Law, because the legal status of judges of the UPC is insufficiently regulated under the rule of law (1.), encroachments on fundamental rights by the UPC are not sufficiently legitimised by law (2.) and the UPCA violates EU law (3.).

1. Legal status of the UPC-judges insufficiently regulated by the rule of law

The complainant rebukes that there is a lack of a sufficiently specific legal basis for the appointment and selection of the judges of the UPC. Moreover, the encroachments on fundamental rights entailed by the jurisdiction of the UPC could not be legitimised for lack of parliamentary involvement. The complainant claims that this also violates his right to democratic self-determination derived from Article 38 I 1 of the Basic Law.

Although the Federal Constitutional Court states that the democratic legitimation for the exercise of judicial authority by the UPC is directly objectionable via Article 38 I 1 of the Basic Law. In the present case, however, the judges of the UPC are in fact substantively legitimised by the Act of Approval. The constitutionally required personnel legitimation results from the fact that the appointment of the judges by the Administrative Committee requires unanimity and, thus, the German representative has an equal and decisive role. With regard to the fact that Germany's participation in supranational courts has never before been called into question by the Federal Constitutional Court, the complainant's statements are not sufficient to demonstrate a possible violation of the principle of democracy.

2. Encroachments on fundamental rights by the UPC not duly legitimised by law

The appellant also criticises the powers of the Administrative Committee provided for in the UPCA to adopt rules of procedure of the UPC and to fix the maximum amounts for reimbursable representation costs. This enables the UPC to have an effect on the constitutionally protected legal positions of voters in Germany, without there being a sufficiently specific parliamentary authorisation for this.

The Federal Constitutional Court, on the other hand, considers democratic legitimacy to be ensured by the fact that Germany has an equal say in the decisions of the administrative committee and that these decisions require a three-quarters majority. In addition, Germany is granted the right of veto on revisions of the UPCA. Moreover, the activity of the Administrative Committee is always tied back to parliament in accordance with Article 23 II, II of the Constitution. Furthermore, neither the competences nor the regulations concerning the procedure of the UPC (Articles 52 et seq. UPCA) and its authority to decide can be changed or extended by the Administrative Committee. Starting points for a concretisation of the maximum amount for the reimbursement of costs can be derived from the fact that the costs to be reimbursed must be “reasonable and appropriate” according to Art. 69 UPCA and a fair balance between the interests of the parties must be guaranteed. Therefore, the appellant's right of appeal is also lacking in this respect.

3. The UPCA infringes Union law

An infringement of the complainant's right under Article 38 I 1 of the Basic Law on account of infringements of Union law by the UPCA is precluded from the outset. The Union law does not provide formal or substantive requirements for national laws, the infringement of which necessarily results in their invalidity. Moreover, according to the established case-law of the Federal Constitutional Court, Union law does not have any priority of validity over German law, but only a priority of application. This means that a violation of Union law does not lead to the invalidity of the national provision and does not automatically entail a violation of the Constitution. Nor does the principle that the Basic Law should be interpreted in Union-law friendly way mean that Union law itself becomes a constitutional yardstick.

However, the Federal Constitutional Court explicitly leaves it open whether something else could apply in this respect if a legal issue is completely regulated by Union law within the framework of the integration agenda. This is not the case here, since the UPC is to be established as an independent supranational institution outside the EU and no specific Union law provisions exist for this.

III.        Limitation to EU Member States

Para. 150 of the Decision contains the interesting observation that the Convention is open only to Member States of the European Union. The Federal Constitutional Court refers to Art. 1 II UPCA, which defines the Unified Patent Court in this respect as a "common court of the contracting member states". In this respect, the term "contracting member state" pursuant to Art. 2(b) and (c) UPCA refers to a member state of the European Union which is a contracting party to this agreement.

According to the Federal Constitutional Court, the United Kingdom can therefore no longer be a party to the UPCA after the Brexit.

The fact that, on the other hand, not all Member States of the European Union are also Contracting States of the UPCA is confirmed by the Institute of Enhanced Cooperation pursuant to Article 20 TEU, Articles 326 et seq. TFEU and does not, in the opinion of the Federal Constitutional Court, call into question that the UPCA is supplementary to or otherwise closely tied to the EU´s integration agenda. Rather, this underlines the close interlocking with the institutional structure of the European Union. (Para. no. 151)

IV.       Points left open - no possibility of a new constitutional complaint

With regard to the further future of the UPCA, it should be emphasised that the Federal Constitutional Court in para. 166 leaves it open whether the establishment of an unconditional primacy of Union law in Art. 20 UPCA violates Art. 20 I and II in conjunction with Art. 79 III of the Basic Law, because the nullity of the Act of Approval already results from other reasons.

This is a major uncertainty for the future. However, a constitutional complaint cannot be lodged again on this issue. Such a complaint always requires that the complainant himself is directly affected by the act of state sovereignty. As long as the Bundestag observes the formal requirements, in particular the requirement of a two-thirds majority, there is no violation of fundamental rights and thus no direct concern of the individual. Therefore, even after the most recent decision of the Federal Constitutional Court, there is still no possibility for an individual or a company to review the constitutionality of a new consent law in the abstract. Such abstract examination of a law could only be initiated by the Federal or a State Government or a quarter of the members of the Parliament.