The German UPC story: take 2 (and is the London seat up for grabs?)

The German Federal Ministry of Justice shows unexpected pace in repeating the legislative process for the German Act of Approval for the Unified Patent Court Agreement (UPCA Approval Act). As we explained in our last post, the German Federal Constitutional Court ruled that UPCA Approval Act adopted by the German Parliament in March 2017 was null and void because it had not been voted by a two-thirds majority (it was adopted unanimously, but when the vote was taken at 1:30am only 35 out of 630 members of parliament were in attendance). In a letter dated 8 June 2020, the Federal Ministry of Justice invited patent law circles and associations to comment on the draft bill of the UPCA Approval Act (the substance of which is unchanged) by 3 July 2020.

Although the invitation is not a constitutional component of the legislative procedure as such, it is nevertheless to be taken as a clear indication that the German Bundestag will vote on the law again (probably within this legislative period ending in September 2021), with the express goal of achieving the two-third majority required by the Federal Constitutional Court.

If the law is voted in, it should pave the way for Germany to enable the unified patent court to be launched at short notice. While the content of the law is unchanged from the previous version, the explanatory memorandum has been updated in light of the new circumstances, particularly the UK’s departure from the EU

In the explanatory memorandum, the Federal Ministry of Justice addressed the issue of the withdrawal of Great Britain from the EU and the UPCA, and considered what fate might befall the Central Chamber's London division, commenting as follows:

The law contains the consent to the Agreement and the Protocol pursuant to Article 59(2), first sentence, of the German Constitution, taking into account the qualified majority pursuant to Article 23(1), third sentence, in conjunction with Article 79(2) of the German Constitution.

The wording of the law is unchanged, but the explanatory memorandum contains necessary updates.

The fact that the United Kingdom is leaving the Agreement as a result of the Brexit does not prevent its implementation:

The entry into force arrangements in the Agreement and its Protocols should ensure that all three States party to the Agreement, the Federal Republic of Germany, France and the United Kingdom, participate in the court system from the start of the Unified Patent Court. In this respect, it should be avoided, for example, that due to the different duration of the ratification procedures, the Agreement initially enters into force with only one or two of the three states. The reference to them thus has the purpose of coordinating the date of entry into force among the actual parties to the Agreement.

Irrespective of the fact that the British consent is currently available, a withdrawal of Great Britain has no influence on the applicability of the regulations on entry into force, at any rate because they are to be interpreted in such a way that a withdrawal of one of these three states, which could not be foreseen by anyone, does not prevent the entire entry into force for the remaining parties.

Moreover, the Agreement expressly provides that, in addition to the seat of the central chamber of the Court of First Instance in Paris and the Munich, a division is to be established in London. It cannot, however, be understood to mean that it wishes to establish or maintain a chamber in a non-contracting Member State. In the event of the discontinuation of the London central chamber division, the Agreement is to be interpreted in such a way that its competences will, at least temporarily, increase to those of the (continued) central chamber in Paris and Munich. An express provision may be made in due course in the context of a review of the functioning of the Court, as provided for in Article 87(1) and (3) of the Agreement.

A political declaration on these issues will be sought among the remaining Contracting States. Finally, the consensual implementation of the treaties would also be a practice or agreement of the States Parties under international law in accordance with Article 31, paragraph 3 of the Vienna Convention on the Law of Treaties.