Dr. Ingve Björn Stjerna, LL.M.

EU Patent Reform: The German Ministry of Justice and the legal scrutiny of the UPCA and the draft legislation for its ratification,

Article on the assessment of the UPCA and its ratification in Germany for compatibility with the Grundgesetz and Union law by the German Ministry of Justice (Published on 21/10/2019)


Contents:

Before a bill can be introduced into parliamentary proceedings, German law stipulates that it must be subjected to a comprehensive legal scrutiny, particularly by the Federal Ministry of Justice and Consumer Protection (“BMJV”), in order to ensure that it is compatible with the German Constitution (“Grundgesetz”) and Union law. The BMJV must certify in writing that this legal scrutiny has been carried out with a positive result. In the case of an international Agreement such as the Agreement on a Unified Patent Court (“UPCA”), the BMJV and the Federal Ministry of the Interior must already be involved in the preparatory work for the purpose of constitutional examination. The following article deals with the framework of this legal scrutiny and its implementation with regard to the UPCA and the two pieces of draft legislation submitted for its ratification in Germany. The fact that compatibility with the Grundgesetz was apparently examined only very selectively and that with Union law was apparently not examined at all should come as no surprise in the light of previous experience.

  • Download English version (Article of 21/10/2019, PDF)
  • Download German version (Artikel vom 21/10/2019, PDF)


Sources used:

  • Link to the “Joint Rules of Procedure of the Federal Ministries” („Gemeinsame Geschäftsordnung der Bundesministerien“) of 01/09/2011 (PDF, German language).
  • Link to the “Manual for Drafting Legislation” („Handbuch zur Vorbereitung von Rechts- und Verwaltungsvorschriften“) (2nd edition, 2012) (German language).
  • Link to the “Handbook of Legal Formality” („Handbuch der Rechtsförmlichkeit“) (3rd edition, 2008).
  • Link to decision BVerfG, 2 BvR 2728/13 et al., judgment of 21/06/2016 – OMT.
  • Link to decision 2 BvR 2728/13 et al., decision of 14/01/2014 – OMT (CJEU referral).
  • Link to decision 2 BvR 2735/14, decision of 15/12/2015 – European arrest warrant.
  • Link to decision BVerfG, 2 BvE 2/08 et al., judgment of 30/06/2009 – Lisbon.
  • Link to the article Stjerna, “The European Patent Reform – The dedication of the German Ministry of Justice to the UPC” (PDF).
  • Link to the CV of Johannes Karcher from fordhamipconference.com (PDF).
  • Link to the document “Roadmap of the Preparatory Committee of the Unified Patent Court” of 16/09/2014 (PDF).
  • Link to BMJV organisation plan of 15/02/2016 (PDF, German language).
  • Link to BMJV organisation plan of 01/10/2017 (PDF, German language).
  • Link to Stjerna, Official information obtained under the German Federal Freedom of Information Act: Assessment compatibility [in particular of the UPCA] with the Grundgesetz
    • Link to document 907/2012 (PDF, German language).
    • Link to document 815/2015 (PDF, German language).
    • Link to document 835/2015 (PDF, German language).
  • Link zu Council document 14750/12 of 12/10/2012 (PDF).
  • Link to the article Stjerna, “The European Patent Reform – Squaring the circle after the »Brexit« vote” (PDF).
  • Link to CJEU Opinion 1/17 of 30/04/2019 – CETA (PDF).
  • Link to CJEU, case C-284/16, judgment of 06/03/2018 – Slovak Republic / Achmea (PDF).
  • Link to CJEU, case C-64/16, judgment of 27/02/2018 – Associação Sindical dos Juízes Portugueses / Tribunal de Contas (PDF).
  • Link zu Council document 7928/09 of 23/03/2009 (PDF).
  • Link to Stjerna, Official information obtained under the German Federal Freedom of Information Act: Compatibility of the UPCA and the “Agreement on the European and Community Patents Court” (cf. Council document 7928/09 of 23/03/2009) with the German Grundgesetz 
    • Link to document 907/2012-1 (PDF, German language).
    • Link to document 907/2012-2 (PDF, German language).
    • Link to document 907/2012-7 (PDF, German language).
    • Link to document 246/2016-8 (PDF, German language).
    • Link to document 246/2016-9 (PDF, German language).
    • Link to document 246/2016-10 (BV 22/11/2016) (PDF, German language).
    • Link to document 246/2016-10 (BV 24/11/2016) (PDF, German language).
    • Link to document 246/2016-10 (09/05/2016) (PDF, German language).
  • Link to the article Stjerna, “The European Patent Reform – The Parliamentary UPCA ratification proceedings in Germany” (PDF).
  • Link to the BPatG allocation business plan of 01/10/2019 (PDF, German language).
  • Link to Federal Council printed matter 751/16 of 09/12/2016 (PDF, German language).
  • Link to Referenced Submission („Bezugsvorlage“) of 07/01/2016 (PDF, German language).
  • Link to the statement by the German Federal Government of 29/09/2009 in CJEU Opinion proceedings 1/09 (PDF, German language).
  • Link to the pleading by the German Federal Government of 17/05/2010 in CJEU Opinion proceedings 1/09 (PDF, German language).
  • Link to Council document 11533/11 of 14/06/2011 (PDF).
  • Link to Stjerna, Official information obtained under the German Federal Freedom of Information Act: Written statements by the BMJV departments responsible for constitutional law (currently department IV A 2), fundamental and legal questions of the EU as well as the procedural law of the EU (currently department IV C 2), public international law/law of international organizations/international jurisdiction (currently department IV C 3) and the law of international Treaties (currently department IV C 4) on the compatibility of the “Agreement on a Unified Patent Court” as well as the “Agreement on the European and Community Patent Court” discussed before it (cf. Council document 7928/09 of 23/03/2009) with the Grundgesetz or the primary law of the European Union, in particular the Treaty on European Union and the Treaty on the Functioning of the European Union (each in the version according to the Treaty of Lisbon as entered into force on 01/12/2009), as well as Opinion 1/09 of the European Court of Justice of 08/03/2011
    • Link to document 1132/2011 (PDF, German language).
  • Link to the article Stjerna, “The European Patent Reform – Urgently needed: A legal basis for the »opt-out« fee” (PDF).
  • Link to Parliament printed matter 18/11137 of 13/02/2017 (PDF, German language).
  • Link to the article Stjerna, “The European Patent Reform – A poisoned gift for SMEs” (PDF).


Further material:

  • Link to the article Stjerna, “The European Patent Reform – UPCA participation of the UK despite EU exit?” (PDF).
  • Link to the article Stjerna, “The European Patent Reform – The German state powers in constitutional complaint proceedings 2 BvR 739/17 (Part 1 of 2)” (PDF).
  • Link to the article Stjerna, “The European Patent Reform – The German state powers in constitutional complaint proceedings 2 BvR 739/17 (Part 2 of 2)” (PDF).
  • Link to the post Stjerna, “The European Patent Reform – The »forgotten« documents of the Preparatory Committee of the Unified Patent Court”.
  • Link to Stjerna, Official information obtained under the German Federal Freedom of Information Act.
  • Link to Stjerna, The Parliamentary History of the European “Unitary Patent” (Tredition 2016), the foreword can be viewed here.


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