Since the German Federal Constitutional Court’s decision earlier this year (reported here) both Germany and Slovenia has ratified the Protocol on Provisional Application (PPA). Only one more member state declaring consent to the PPA is needed for triggering the provisional UPCA application period.
According to a newly published report from the 21st UPC Preparatory Committee, held on 27 October 2021, it is likely that the last member state will declare consent and trigger the provisional UPCA application period by the end of 2021.
Furthermore, the committee confirmed that it will draft a declaration on the interpretation of Art. 3 of the PPA, that will confirm the PPA’s entry into force once 13 member states has declared consent to the PPA. Thus, the committee clearly indicates that Art. 3 of the PPA, which refers to the United Kingdom, and the United Kingdom’s step to leave the UPCA are not considered obstacles to PPA entry into force. This further indicates that the issue concerning relocation of the UPC’s pharmaceutical division (previously set for London) will be handled after the UPCA entry into force.
During the phase of provisional UPCA application, the UPC will be implemented as an international organization and preparatory measures for a functional UPC will be initiated, including adoption of secondary legislation, completion of the electronic case management system and the appointment of judges to the UPC. The UPC Preparatory Committee expects that the preparations for a functional UPC will require approx. eight months.
The UPCA will enter into force on the first day of the fourth month of Germany’s UPCA ratification, which is the last remaining UPCA ratification required. Germany is expected to ratify the UPCA once it is clear, from the preparations during the provisional UPCA application, that the UPC will be operational at the day of UPCA entry into force.
In summary, all indications are that the provisional UPCA application period may be just around the corner.