Constitutional complaint against UPCA ratification in Germany (14/06/2017, latest update on 16/03/2018)
As reported in the press recently, a constitutional complaint has been filed against the German ratification of the UPCA after the conclusion of the Parliamentary proceedings on 31/03/2017, concomitantly requesting the court to oblige the involved institutions by an interim order (“einstweilige Anordnung”) to desist from completing the ratification process until a decision in the proceedings on the merits, i. e. in the constitutional complaint proceedings.
At the request of the Federal Constitutional Court, the Office of the Federal President agreed on 04/04/2017 to suspend the ratification process until a decision on the merits has been made. This is a common practice of the court with regard to requests for interim measures against the execution of legislative acts which it deems to be not obviously unfounded. With such suspension of the ratification process, a decision of the request for an interim order is usually no longer necessary and the court will advance to the material assessment of the case.
As a next step, it will take a decision on whether it wishes to adopt the constitutional complaint for a decision. The timeline required for this varies, it usually takes several months.
The Federal Constitutional Court has most recently sent the constitutional complaint to several parties to the proceedings and to third parties for their comments. This has no implications for whether the constitutional complaint will be accepted for a decision or for its prospects.
The Federal Constitutional Court has meanwhile invited further third parties to submit their comments on the constitutional complaint. In total, the number of invitations to comment is presently 27.
Update (26/10/2017, updated on 12/01/2018):
Most recently, individuals not involved in the proceedings have published detailed information from the complaint brief without the consent of the respective right owner. The court has been informed about this, the lawfulness of the incident is under review by different authorities.
On its website, the Federal Constitutional Court provides detailed information on the proceedings for which it has competence and on the deliberation process. The explanations on the constitutional complaint proceedings can he found here, those on measures of preliminary protection of rights here. The deliberation process is set out in more detail here.
In August 2017, the FCC had served the constitutional complaint on both chambers of Parliament (Bundestag and Bundesrat), the Federal Chancellery, the Federal Ministry of Justice and Consumer Protection and all State governments, giving them the opportunity to comment until 31/12/2017 – until 31/01/2018 in case of the Bundestag – (sec.s 23(2), 94(4), 77 of the Federal Constitutional Court Act [BVerfGG]).
Within the same time limit, the Presidents of the Federal Bar Association (BRAK) and of the German Association of Lawyers (DAV) and – in reply to their prior written request – the Presidents of the European Patent Lawyers Association (EPLAW), of the European Patent Office (EPO), of the German Association for Industrial Property and Copyright (GRUR), of the European Patent Litigators Association (EPLIT) and of the Confederation of German Industry (BDI) were allowed to comment pursuant to sec. 27a BVerfGG.
A statement was filed by the Bundestag and the Federal government as well as by BRAK, DAV, EPLAW, EPA, GRUR and EPLIT.
In its judgment of 06/03/2018 in matter C-284/16 (Slovak Republic v Achmea BV), the CJEU (Grand Chamber) confirms its requirements as to the protection of the principle of Union law autonomy in relation to international courts, cf. here.