In its decision published today, 20 March 2020, the German Federal Constitutional Court has held that the Act of Approval to the Agreement on a Unified Patent Court (UPCA) is void (German text here). Germany’s top court ruled that approval of the UPCA required a qualified majority of 2/3 of the German Parliament and, which the Act of Approval did not enjoy. According to the court’s press release, the Act of Approval of the UPCA “[i]n its outcome, it amends the Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority. This is what the Second Senate of the Federal Constitutional Court decided on a constitutional complaint in an order published today. In its reasoning, the Senate stated that, in order to safeguard their 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. An act of approval to an international treaty that has been adopted in violation thereof cannot provide democratic legitimation for the exercise of public authority by the EU or any other international institution supplementary to or otherwise closely tied to the EU“.
The decision clearly means further delay for the UPCA and comes less than a month after the UK will reportedly also not be part of the UPC system. The German Parliament may of course re-introduce an Act of Approval and vote it in with a 2/3 majority. Achieving such majority perhaps will not be too difficult (the void Approval Act was reportedly approved unanimously, but by only a handful of MPs), but the timing of such an initiative can only be guessed at.