Authors
Dr. Gisbert Hohagen, Lic. en droit (Paris II/ Assas)

Dr. Gisbert Hohagen, Lic. en droit (Paris II/ Assas)

Partner

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Dr. Philipp Krusemarck

Salary partner

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Authors
Dr. Gisbert Hohagen, Lic. en droit (Paris II/ Assas)

Dr. Gisbert Hohagen, Lic. en droit (Paris II/ Assas)

Partner

Read More

Dr. Philipp Krusemarck

Salary partner

Read More

22 January 2021

New – presumably short – delay of the Unified Patent Court due to two constitutional complaints with expedited motions

  • Briefing

As in the first attempt, two constitutional complaints (case nos. 2 BvR 2216/20 and 2 BvR 2217/20) have been filed against the second, substantially unaltered law approving the Agreement on a Unified Patent Court (UPCA) after the Bundestag (German Parliament) and Bundesrat (German Federal Council) had once again cleared the way for the Agreement.

Application for interim relief

Flanking both constitutional complaints, an application for interim relief was filed in each case seeking to prevent the entry into force of the UPCA approval act and the ratification of the UPCA under international law. As is customary with applications for interim relief against laws approving international treaties, the Federal Constitutional Court has asked the Federal President, Frank-Walter Steinmeier, to wait for the ruling on the expedited motions before executing the approval act. The Federal President has stated that he will comply with this request.

This will once again delay the ratification and thus the entry into force of the UPCA until the Federal Constitutional Court has rendered a decision. However, this time, the delay will only last until the Federal Constitutional Court’s decisions in the two expedited proceedings rather than until the decision in the main proceedings, as in the first constitutional complaint.

Delay expected to last only a few weeks

On 8 January 2021, the Bundestag - and the Federal Government - submitted a statement on the applications for interim relief to the Federal Constitutional Court. Following a recommendation of the Committee on Legal Affairs and Consumer Protection, the Bundestag in its session on 14 January 2021 decided to intervene in the two contentious proceedings and to submit a statement on the merits as well.

The exact content of the two constitutional complaints not being public yet, it is currently not safely foreseeable how long the Federal Constitutional Court will take to decide on the expedited motions. However, word from the parties involved is that the contents of the constitutional complaints do not offer any surprises and should not be particularly critical. We therefore expect that the delay will last only a few weeks rather than years until the Federal Constitutional Court reaches a decision on the expedited motions.

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