As the Second Senate of the German Federal Constitutional Court ("Bundesverfassungsgericht") decided today, the Act of Approval to the Agreement on a Unified Patent Court ("UPC") is void. This Act and the German ratification of the Agreement was one of the prerequisites for the UPC to start its work.
The good news is, the Federal Constitutional Court did not find the substance of the Act to be unconstitutional but rather held that the voting process in German Parliament violated the formal requirements. In its outcome, this Act would have amended the Constitution in substantive terms without the necessary two-thirds majority of all members of the German Bundestag. As the Act has been adopted in violation of the voting principles, it cannot provide democratic legitimation for the exercise of public authority by the UPC as an international institution supplementary to, or otherwise closely tied to, the European Union.
Three of the judges were of a dissenting opinion: Whether parliament adheres to the mere formal requirements when conferring sovereign powers would not affect the mandatory foundations of the principle of democracy.
With the United Kingdom recently deciding to withdraw from the UPC, this decision is not the biggest obstacle for the new court. Discussions are proceeding as to whether, as a result, an amendment of the UPC Agreement is needed. However, there will now have to be a further vote in the German Parliament as well. As the decision makes clear, a simple majority vote will not be sufficient next time.
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