Finally a green light for the start of the UPC – an analysis of the ruling by the Bundesverfassungsgericht and the remaining preparatory work

I will first discuss the judgment of the German Constitutional Court and then briefly the next steps towards the start of the UPC.

The procedures before the Constitutional Court

This was in fact the second case before the Constitutional Court against ratification of the UPC Agreement. In the first case the Court declared the ratification invalid in a judgment of 13 February 2020, because the required quorum was not present in the German federal parliament (Bundestag) when the ratification act was adopted. The second case was handled much faster than the first one, inter alia because there was an important procedural difference.

The last step for the ratification act, after acceptance by the Bundestag and the Bundesrat (the council that represent the 16 states or Länder that make up the German federation), is that it is signed, issued and declared (“ausgefertigt und verkündet”) by the federal president (Bundespräsident). When a complaint is filed in the Constitutional Court, alleging that legislation is in violation of the constitution, the Court asks the president’s office to postpone signing, issuing and declaring until the Court has ruled on the complaint. This is normally awarded. To anticipate a refusal to postpone, a complaint is normally accompanied by a request for a preliminary injunction, but that doesn’t need to be decided if the president agrees to postponing. That is how it went with the first complaint against ratification of the UPC Agreement.

However, with this second set of complaints it was apparently clear that the president would not agree to postponing anymore, except for the time needed to decide on the preliminary injunction. This made it necessary for the Court to indeed rule on a preliminary injunction that would halt the ratification until the Court would have decided on the complaint itself. It is this request for a preliminary injunction that has now been refused, but in the grounds for its decision the Court clearly states that the complaints in the main case themselves have no merit.

The Constitutional Court mentions that this is the last opportunity to stop the German participation in the UPC Agreement, since once the ratification act is submitted, Germany is bound to the agreement by international law, which cannot be reversed by the Constitutional Court. Since it is very unlikely that in this case the ruling on the complaint will deviate from the grounds for rejecting the preliminary injunction, this basically means that ratification of the UPC Agreement by Germany is now certain.

The approach towards handling the preliminary injunction

Both the German government and the German parliament argued that further delay would harm the confidence of the other countries in Germany,  whereas the plaintiffs had not stated a specific personal interest that would be harmed if the UPC proceeds. Therefore, in their view the balance of interests would prevent a preliminary injunction. Of course they also argued that there was no violation of the German Constitution.

The Constitutional Court starts its reasoning by clearly stating that the preliminary injunction should be dismissed…