EU Patent Reform: Status of the UPCA ratification proceedings in Germany (Published on 12/12/2016, latest update on 11/12/2020)
In a press statement of 30/11/2016 (German language) issued by the Parliamentary group of the CDU/CSU, currently forming the government together with the SPD group, on the occasion of the British government’s statement as regards its position towards the Agreement on a Unified Patent Court (“UPCA”), the Federal Minister of Justice has been prompted to present anew draft legislation for the ratification of the UPCA in Germany. It is asserted that the involvement of the Federal Council (“Bundesrat”), the second chamber in the German Parliamentary system, has violated the requirements of the German constitution (“Grundgesetz”, “GG”).
The respective part of the press statement reads (English translation of the German original text):
“On 25 May 2016, the Federal government has presented under Article 59(2)1 GG draft legislation submitted by the Federal Minister of Justice and Consumer Protection, declaring it particularly urgent. In doing so, it has not been observed that in the case of draft legislation transferring sovereign rights to international organisations a designation as urgent is excluded and that the deadline for a statement by the Federal Council is longer than it is in case of ordinary draft legislation. Against this background, it is required that draft legislation be presented anew.”
Background:
On 08/07/2016, the Federal Council decided not to raise objections against the draft legislation on UPCA ratification (Federal Council printed matter 280/16, German language) which had been sent to it as urgent on 27/05/2016 (Federal Council printed matter 280/16 [decision], German language). For its statement, it relied on the shorter deadline for “urgent matters” instead of the applicable longer deadline of Art. 76(2)5 GG.
In the same session, it also adopted the draft accompanying legislation (Federal Council printed matter 282/16, German language) without objections (Federal Council printed matter 282/16 [decision], German language).
Update (15 and 28/12/2016):
On 09/12/2016, the Federal Ministry of Justice and Consumer Protection has newly submitted its draft legislation on the ratification of the UPCA (cf. here, German language) and has forwarded it to the Federal Council for review (Federal Council printed matter 751/16, German language), now referring to Art. 76(2)5 GG. Apart from the reference to urgency which has been removed, the draft – as far as can be seen – is identitical to the initial one.
Update (31/01/ and 10/02/2017):
The German Parliament’s first reading on the newly submitted draft legislation on the ratification of the UPCA is currently scheduled to be held in the 218th session on Thursday, 16/02/2017 (cf. item 27 on the agenda (date: 09/02/2017, German language)).
Update (07/02/2017):
The Federal Council is currently planning to discuss the newly submitted draft legislation on the ratification of the UPCA in its 953th session on Friday, 10/02/2017. The Committees involved have suggested to the Federal Council not to raise objections against the draft, pursuant to Art. 76(2) GG (cf. item 69 on the agenda (date: 31/01/2017) and the respective explanations (date: 07/02/2017) – both in German language).
Update (24 and 25/02/2017):
In its session on 10/02/2017, the Federal Council has acknowledged the newly submitted draft legislation on the ratification of the UPCA without objections (cf. Federal Council printed matter 751/16 [decision], German language).
In its session on 16/02/2017, the German Parliament held its first reading on the newly submitted draft legislation on the ratification of the UPCA (Parliament printed matter 11/11137, German language) and referred it to the Legal Affairs Committee (cf. agenda item 27 a) of the protocol, German language). Currently, the second and third readings are planned to be held in the 221st session on Thursday, 09/03/2017 (cf. item 42 on the agenda (date: 02/03/2017), German language).
Also scheduled for the session on 09/03/2017 is the first reading on the German government’s draft legislation on the Protocol on Privileges and Immunities of the UPC (Parliament printed matter 18/11238, cf. item 56 c) on the agenda (date: 02/03/2017) – both German language). The draft legislation has been sent to the Federal Council on 27/01/2017 designated “particularly urgent”, based on Art. 76(2)4 GG (Federal Council printed matter 81/17, German language).
Update (03/03/2017):
As things currently stand, the Committee for Legal Affairs and Consumer Protection of the German Parliament will discuss the draft legislation on the ratification of the UPCA and the draft accompanying legislation (Parliament printed matter 18/8827, German language) on Wednesday, 08/03/2017 (cf. items 3 a) and b) on the agenda (date: 03/03/2017), German language).
The Committee on Affairs of the European Union also involved in the draft accompanying legislation will discuss it also on 08/03/2017 (cf. item 7 on the agenda (date: 02/03/2017), German language). It is not known yet when the Committee on Education, Research and Technological Impact Assessment, which is also involved insofar, will have its discussion on the draft.
Currently, the Federal Council is scheduled to discuss the government’s draft legislation on the Protocol on Privileges and Immunities of the UPC in its 954th session on Friday, 10/03/2017 (cf. item 56 of the agenda (date: 28/02/2017), German language).
Update (10/03/2017):
On 09/03/2017, the German Parliament adopted the draft legislation on the ratification of the UPCA and accompanying legislation without a debate (cf. the protocol, p. 22262 A, German language). Both drafts were adopted with the approval of all attending Members of Parliament. The vote had been shifted from the originally envisaged time of 8:15 a.m. to 4:40 a.m., finally taking place at 1:31 a.m., attending were apparently only 35 of 630 Members of Parliament (cf. the Parliament TV recording here, German language).
Prior to this, on 08/03/2017 the Committee for Legal Affairs and Consumer Protection had unanimously recommended to adopt the drafts in unchanged form, shared by the unanimous approval of both the Committee on Affairs of the European Union and the Committee on Education, Research and Technological Impact Assessment (cf. the recommendation in Parliament printed matter 18/11451, German language).
Currently, the Legal Affairs Committee of the Federal Council will discuss both drafts on Wednesday, 15/03/2017 (cf. items 5 and 6 on the agenda (date: 09/03/2017, PDF, German language). The vote by the Federal Council, which will complete the Parliamentary procedure, may be held in one of the two next sessions on 31/03/2017 or 12/05/2017.
As regards the Protocol on Privileges and Immunities of the UPC, the Federal Council acknowledged the government’s draft legislation without objections in its session on 10/03/2017 (cf. Federal Council printed matter 81/17 [decision], German language).
Update (14/03/2017):
The Federal Council is currently scheduled to discuss and most likely also vote on the government’s draft legislation on the ratification of the UPCA and accompanying legislation in its 956th session on Friday, 31/03/2017 (cf. items 8 a) and b) of the agenda (date: 14/03/2017), German language).
Update (01/04/2017):
In its session on 31/03/2017, the Federal Council has approved the draft legislation on the ratification of the UPCA and accompanying legislation (cf. Federal Council printed matters 202/17 [decision] and 203/17 [decision], German language); just like in Parliament, the approval of the former was unanimously. This completes the Parliamentary procedure.
For finalising ratification, it is necessary that the Federal President executes the Ratification Act, countersigned by the German government, and that the instrument of ratification is executed and deposited with the General Secretariat of the Council of the EU (Art. 84 (2) 2 UPCA).
Update (03/05/2017):
On 27/04/2017, the German Parliament adopted the draft legislation on the Protocol on Privileges and Immunities of the UPC (Parliament printed matter 18/11238 (neu), German language) without a debate (cf. the protocol, p. 23229 D, German language). The draft was – once again – approved by all attending 42 (of overall 630) Members of Parliament. A video recording of the session can be found here (German language).
Prior to this, on 26/04/2017, the Committee for Legal Affairs and Consumer Protection had recommended the “unanimous adoption of the draft legislation in unamended form” (cf. Parliament printed matter 18/12147, German language).
Update (11/06/2017):
In its session on 02/06/2017, the Federal Council has approved the draft legislation on the Protocol on Privileges and Immunities of the UPC (cf. Federal Council printed matter 372/17 [decision], German language). This completes the Parliamentary procedure.
For finalising ratification, it is necessary that the Federal President executes the Act, countersigned by the German government, and that the instrument of ratification is executed and deposited with the General Secretariat of the Council of the EU (Art. 17 (2) 2 of the Protocol). As is known, the Protocol can be applied provisionally (Art. 19 of the Protocol).
Update (29/03/2018):
On 15/03/2018, the Plenary of the German Parliament held its first debate on the European patent reform (cf. the protocol, p. 1722, and the Parliament TV recording here, both German language).
The Parliamentary group AFD had requested to prompt the Federal government to immediately present draft legislation repealing the Act on the Agreement of 19 February 2013 on a Unified Patent Court and the accompanying Act on the Amendment of patent law provisions due to the European Patent Reform and to inform the Federal Constitutional Court accordingly (cf. Parliament printed matter 19/1180, German language).
At the end of the debate, the matter was referred to the Committees for further deliberation.
Update (29/10/2018 and 12/03/2019):
On 19/10/2018, the German Federal Government has provided the answer (Parliament Printed Matter 19/5215 [German language]) to a minor interpellation posed by the Parliamentary group of the Liberals on the topic “Consequences of Brexit for Germany and Europe: Legal Policy”(Parliament Printed Matter 19/4411 [German language]), relating, inter alia, to the impact on the European Patent Reform.
The question
“(18) What position will the Federal Government take in the further negotiations on the question whether the United Kingdom will be able to participate in a Unified Patent Court (UPC), if it rejects the jurisdiction of the European Court of Justice (CJEU) (in other respects)?”
was answered as follows:
“The draft withdrawal agreement does not prevent the United Kingdom from participating in the unitary patent protection, at least until the end of the transitional phase. For the time beyond that, reference is made to the preliminary remark. It should also be noted that, by ratifying the Agreement on a Unified Patent Court, the United Kingdom has acknowledged the jurisdiction of the European Court of Justice as provided for in the Agreement.”
On, 20/11/2018, the German Federal Government has also published its reply (Parliament Printed Matter 19/5892 [German language]) to a major interpellation by the same Parliamentary group on the same topic from 27/04/2018 (Parliament Printed Matter 19/1932 [German language]).
Update (12/03/2019):
In its 36th session on 20/02/2019, the Committee for Legal Affairs and Consumer Protection has deliberated on the motion filed by the AfD Parliamentary group, to prompt the Federal government to immediately present draft legislation repealing the Act on the Agreement of 19 February 2013 on a Unified Patent Court and the accompanying Act on the Amendment of patent law provisions due to the European Patent Reform and to inform the Federal Constitutional Court accordingly (cf. Parliament printed matter 19/1180, German language).
With the votes of the Parliamentary groups CDU/CSU, SPD, FDP, Die Linke and Bündnis 90/Die Grünen and against the votes of the AfD group, it was decided to recommend to the Bundestag that the motion be rejected (cf. Parliament printed matter 19/7961, German language).
Similar decisions had previously been made by the Committees on Economics and Energy (30th session on 20/02/2019), on Education, Research and Technological Impact Assessment (20th session on 20/02/2019) and on Affairs of the European Union (28th session on 20/02/2019).
Likewise with the votes of the Parliamentary groups of CDU/CSU, SPD, FDP, Die Linke and Bündnis 90/Die Grünen and against the votes of the AfD group, the Committee for Legal Affairs and Consumer Protection rejected in its 32th session on 30/01/2019 the AfD motion to conduct a public consultation on its proposal to repeal the Act on the Agreement of 19 February 2013 on a Unified Patent Court (cf. Parliament printed matter 19/7961, German language).
A date for the Bundestag vote on the proposal has not yet been scheduled.
Update (16 and 17/06/2020):
The German Ministry of Justice and Consumer Protection (“BMJV”) recently published a draft bill on the Agreement of 19 February 2013 on a Unified Patent Court (German language) and, as reported in the press, sent it to different recipients with the opportunity to comment. An official communication of the BMJV on this matter is not known here.
The letter of the BMJV dated 08/06/2020 (German language), provided by third parties, is addressed “to the associations and institutions interested in patent law” ( “an die am Patentrecht interessierten Verbände und Institutionen”) – the specific addressees are currently unknown here – and allows them to submit comments on the aforementioned draft bill until Friday, 03/07/2020. The BMJV seems not to be interested in comments beyond the circle of persons expressly addressed.
Should you have not received the aforementioned letter from the BMJV, but would still like to comment on the draft bill, you should send your comments within the specified time limit – preferably by e-mail – to:
Bundesministerium der Justiz und für Verbraucherschutz
Referat III B 4
Z. H. Frau Lehmann
Mohrenstr. 37
10117 Berlin / Germany
poststelle@bmjv.bund.de
Fax ++49 30 18 580 9525
If you wish, you can send me a copy of your statement to info@stjerna.de.
Update (20/07/2020):
Upon a request based on the German Federal Freedom of Information Act, the German Ministry of Justice and Consumer Protection (“BMJV”) disclosed to whom it had forwarded the latest draft bill on the Agreement of 19 February 2013 on a Unified Patent Court “with the opportunity to comment” in its letter dated 08/06/2020 (German language).
Accordingly, the aforementioned letter addressed “to the associations and institutions interested in patent law” (“an die am Patentrecht interessierten Verbände und Institutionen”) was sent on 08/06/2020 by e-mail (German language) to a total of 88 addressees, also including multiple addressees within the same association.
The BMJV received 16 statements, including some from outside the explicitly addressed group of persons.
Update (25 and 26/11/, 01 and 11/12/2020):
On 07/08/2020, the German government started its second attempt to ratify the Agreement on a Unified Patent Court and sent its corresponding draft legislation to the Federal Council (“Bundesrat”; Federal Council printed matter 448/20, German language). In its 993rd session on 26/09/2020 the Federal Council raised no objections to the draft (Federal Council printed matter 448/20 (decision) and protocol, p. 297, both German language).
On 25/09/2020 the German government presented its draft to the German Parliament (“Bundestag”, Parliament printed matter 18/22847, German language). In the first deliberation on 08/10/2020 the draft was referred to the Committee on Legal Affairs and Consumer Protection (in charge), the Committee on European Union Affairs and the Committee on Budgets (protocol, p. 23001 (D), German language).
In its 113th meeting on 25/11/2020, the Committee for Legal Affairs and Consumer Protection dealt with the draft legislation (item 3 on the agenda of 20/11/2020, German language) and recommended its adoption, against the votes of the AfD. A motion by the AfD Parliamentary group to hold a public hearing on the dossier was rejected (see the report “Bills pass the Legal Affairs Committee” of 25/11/2020 and the Resolution recommendation in Parliament printed matter 19/24742, both German language).
The Parliamentary group CDU/CSU is of the opinion (Resolution recommendation, p. 4, last para.)
“…that the primacy of Union law provided for in Article 20 of the Agreement affects neither the fundamental domestic constitutional guarantees, in particular the principles laid down in Article 1 and Article 20(1) and (2) in conjunction with Article 79(3) of the Grundgesetz, nor the Federal Constitutional Court’s jurisdiction to review compliance with minimum constitutional standards in the transfer of sovereign rights to European or intergovernmental institutions.”
The SPD parliamentary group thinks (Resolution recommendation, p. 5, first para.)
“…that the final distribution of the competences of the Unified Patent Court with regard to the partial location in London provided for in the Agreement, that is necessary due to the withdrawal of the United Kingdom from the European Union, is still to be resolved appropriately in the future in consent with the other Member States participating in the Agreement.”
Also on 25/11/2020, the Budget Committee consulted on the draft legislation and recommended its adoption, against the votes of the FDP and the AfD (Resolution recommendation in Parliament printed matter 19/24743, German language).
On 26/11/2020, the German Parliament held its second and third deliberations on the draft law and adopted it by a qualified majority (cf. the protocol, German language).
The Federal Council is to take a final decision on the draft legislation in its 998th session on 18/12/2020 (cf. item 10 on the agenda, German language). The Legal Committee of the Federal Council has recommended its adoption (cf. p. 43 of the explanations on the agenda, German language).
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