The German Federal Constitutional Court has declared void the act of approval to the agreement on the European Unified Patent Court, as it has not been approved with the required two-thirds majority.
On February 13, 2020, the Bundesverfassungsgericht (German Federal Constitutional Court – “BVerfG”) has upheld the constitutional complaint filed against the national legislation on the Unified Patent Court (“UPC”).
The Second Senate of the BVerfG (“Senate”) decided that the concerned national law has amended the Constitution of the Federal Republic of Germany in substantive terms, though it has not been approved by the German Parliament with the required two-thirds majority.
Within its reasoning, the Senate stated that “in order to safeguard their [i.e., the German citizens’] right to influence the process of European integration by democratic means, this, in principle, also entails the right of citizens that sovereign powers be conferred only in the ways provided for by the Basic Law [i.e., the Constitution of the Federal Republic of Germany]”. On the contrary, an act of approval to an international (or European) treaty that has been adopted in violation of such relevant German legal provisions, is not a legitimate ground for the exercise of sovereign powers, as the ones concerning the Unified Patent Court, by the European Union institutions.
This happening originated after European Union has prepared for years to equip itself with a new patent structure focused on the creation of a unitary title (the so-called “European patent with unitary effects”) and uniform protection for the whole territory of the European Union. Since the beginning, this has been a complex system of judicial integration on a “pan-European” scale.
On its side, Italy has acceded this system by ratifying, through Law No. 214 of November 3, 2016, the Agreement on the establishment of the Unified Patent Court and creating in Milan a local division of the Court.
Given that, because of the Brexit, the UK Government has declared that it will not take part to the Unitary Patent and the UPC, the judgment of the BVerfG is now seriously putting at risk the possibility of the new system to come into force; on the one hand because Germany is one of the “unavoidable” countries, which under the relevant European legislation must ratify the UPC system to let it come into force; on the other hand because the current emergency situations determined by the Covid-19 outbreak makes it very difficult that the German Parliament will be able to adopt soon a new ratification law of the UPC with the required two-thirds majority.
 This new European patent structure is based on (i) Regulation (EU) No. 1257/2012 of the European Parliament and of the Council of December 17, 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection (accessible here); and (ii) Council Regulation (EU) No. 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements (accessible here).