article / 14 Jul 2021

UP/UPC Update: Preliminary injunctions against the German UPCA ratification bill rejected – one step closer to the UPC

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In an order published on 9 July 2021, the German Federal Constitutional Court (FCC) rejected the two applications for preliminary injunctions against the German UPCA ratification bill. The applications were part of the two constitutional complaints filed after the UPCA ratification bill was approved by the German parliament in November and December 2020.

Although the FCC decision concerns the applications for preliminary injunction, the FCC is considered to have signalled that the constitutional complaints will not be successful. In its reasoning, the FCC stated that the complainants have failed to assert and substantiate why and how the UPCA could violate provisions of the German Basic Law. The FCC also stated that the complainants had merely brought assertions that failed to address whether the Basic Law had been violated.

The general understanding is that the German President will likely see this as a go-ahead to sign the UPCA ratification bill into law and complete Germany’s ratification process, a sentiment also publicly shared by one of the complainants. The UPC Preparatory Committee has issued a public statement, describing it as a[…] positive development, with the the way now being cleared for Germany’s deposit of its ratification Bill.”  Whether the German President acts in accordance with these expectations remains to be seen.

If Germany decides to consent to the Protocol on Provisional Application, two additional states are expected to follow suit on short notice and thereby trigger the provisional UPC application period. The provisional application period will involve finalisation of the recruitment of judges, election of officials and procuring necessary infrastructure for the UPC, and is expected to last between eight to twelve months. All in all, current projections for a complete ratification process and a functional UPC vary between late 2022 and 2023.

Questions are still being raised whether outstanding issues such as amendments of the UPCA due to UK’s departure and the relocation of the UPC’s pharmaceutical division (that was previously set for London) risks delaying the UPC project further. The latest development from the FCC proceedings, however, marks one step closer to a functional UPC system.

Read Setterwalls’ previous update on the ratification legislation process and the FCC constitutional complaints here, here, and here.

The press release from the FCC (English) and the full decision (in German) is available here.

The full statement from the UPC preparatory committee is available here.

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