EU Patent Reform: Second constitutional complaint against UPCA ratification in Germany (Published on 11/01/2021, latest update on 30/08/2022)
After the conclusion of the Parliamentary proceedings on 18/12/2020, a constitutional complaint has been filed against the German ratification of the UPCA, 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 (docket no. 2 BvR 2217/20).
The Federal Constitutional Court (“BVerfG”) has sent the constitutional complaint to the German Parliament, the Federal Council, the Chancellor’s Office, the Federal Ministry of the Interior, the Federal Ministry of Justice and Consumer Protection and to the Foreign Office for their comments on the application to grant an interim order. Whether coordination took place between the BVerfG and the Federal President as to the further progress of the ratification process is currently not known.
Those wanting to support this constitutional complaint, can do so here.
According to press reports, the BVerfG received a further constitutional complaint in relation to the ratification of the UPCA in Germany (docket no. 2 BvR 2216/20). No further details are known yet.
Update (19 and 20/01/2021):
In its 127th session on 13/01/2021, the Committee on Legal Affairs and Consumer Protection recommended to the German Parliament, by a majority, to intervene in proceedings 2 BvR 2216/20 and 2 BvR 2217/20 and to submit a statement also in the proceedings on the merits, subsequent to the one filed in the procedings for the grant of an interim order already (Parliament printed matter 19/25829 [German language]).
In its 204th session on 14/01/2021, the German Parliament has followed this recommendation by a majority (protocol, p. 25685 (A) [German language]).
Immediately after the start of the new Parliamentary proceedings for the ratification of the UPCA in August 2020, all Parliamentary groups from the opposition in the German Parliament were comprehensively informed in writing on 21/09/2020 about the legal problems of the UPCA and its risks for small and medium-sized enterprises and were requested to raise these problems in the Parliamentary proceedings. Included were several questions which the German Federal government could be asked to answer (cf. letter of 21/09/2020 [German language] and English office translation).
On 27/10/2020, the FDP Parliamentary group submitted a Parliamentary interpellation requesting the German Federal government to answer several of the questions raised in this letter (cf. Parliament printed matter 19/23651 [German language]). It is worthy to note which questions from the letter were avoided or were asked with a different wording.
The German Federal government answered on 10/11/2020 (cf. Parliament printed matter 19/24197 [German language]).
In a further letter sent to all Parliamentary groups from the opposition in the German Bundestag on 09/11/2020, they were asked to assess whether they would wish to make use of their right to initiate a procedure for judicial review at the BVerfG as a means to clarify the questions as to the compatibility of the UPCA with the Grundgesetz (cf. letter of 09/11/2020 [German language] and English office translation). No reply was received.
With decision of 23/06/2021, the BVerfG has rejected the request to oblige the involved institutions by an interim order (“einstweilige Anordnung”) to desist from completing the UPCA ratification process until a decision in the proceedings on the merits (docket no. 2 BvR 2217/20) (also cf. the court’s press statement no. 57/2021 of 09/07/2021).
With decision of 13/07/2022 (German language), the BVerfG rejected adopting the constitutional complaint. For the reasons, reference was made to the decision of 23/06/2021 on the application for an interim order.
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