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Berlin, 19 feb 2020 — Germany cannot ratify the current Unitary Patent due to Brexit and the established AETR case-law. The ratification of the UPC (Unified Patent Court) by Germany would constitute a violation of the AETR case-law, which was used during the EPLA negotiations in 2006 to consider a deal with non-EU countries, such as Switzerland. FFII says that if Germany proceeds with the ratification, it will open up the possibility for a second constitutional complaint. The Unitary Patent signals the third attempt to validate and expand software patents in Europe.

Following Brexit, the UPC has become a different kind of agreement, whose validity passes now under the supranational jurisdiction and competence of the EU (Articles 216/218 TFEU). UK is now a “third state” within the meaning of AETR case-law, under the current transition period of the Withdrawal Agreement and, as such, the authoritative legal precedent of AETR applies now.

If Germany is misled by the patent industry and ratifies the UPC, this would be a serious breach of procedure under EU law by the German government, and a new constitutional complaint will be launched.

The “AETR” case-law (22/70) of the Court of Justice of the EU, makes clear that:

“Each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form they may take, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with third countries which affect those rules or alter their scope.“

Accordingly, the EU has the competence to sign an agreement with the UK relating to the subject matter covered by the UPC. The fact that the UK has withdrawn from the EU, clearly brings the matter within the competence and supranational jurisdiction of the EU.

This practically means that the ratification procedure for the Agreement on the Unified Patent Court (UPCA) must now come to an end, as that Agreement no longer applies due to the current significant changes (i.e. Brexit) in the membership requirements of its own ratification rules. In addition, according to the Common Rules of Procedure of the German Federal Ministries (Gemeinsame Geschäftsordnung der Bundesministerien), section 43 (1) number 8, calls for the presentation of the connections to and the compatibility of German legislative initiatives with the EU law.

It follows that the German Government must examine first whether or not  the UPCA can still be compatible with EU law, and in particular, now that the UK has withdrawn from the EU. In view of the established case-law in  “AETR” and the exit of the UK from the EU, the UPCA is clearly no longer compatible with EU law.

In this respect, as the question of compatibility of UPCA with EU law has already been addressed to the highest court in Germany, the German Constitutional Court is now required to refer the matter to the CJEU for a preliminary ruling under the provisions of Article 267 TFEU, before the German judges reach a decision.

The Unitary Patent is a highly controversial and extreme issue, as it allows new international patent courts to have the last word on the development and application of patent law and industrial property monopolies including, more seriously, the validation and expansion of software patents, that is the key sector on which whole industries and markets depend. It also leaves the Court of Justice of the EU in the weakest position to have only a say in few limited tech matters. Such an unprecedented takeover of the EU’s institutional powers by external, international organizations, of which the Unitary Patent system consists, is dangerous and can undermine permanently democratic governance and with it, economic development and sustainability in entire states in Europe.

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