UPC takes a big step forward as German Constitutional Court rejects further challenges

It has been announced today that the German Constitutional Court has rejected the latest challenges to ratification of the UPC Agreement ("UPCA"). The full decision (in German) can be found here. The decision paves the way for ratification to take place and may lead to the UPC coming into force as early as Autumn 2022.

The most recent constitutional challenges to the UPC came when two complainants applied for preliminary injunctions after the German upper house (Bundesrat) approved key pieces of UPC legislation in December 2020. This led to the German Constitutional Court asking the Federal President to withhold his signature, thus preventing ratification. However, today's decision rejects these preliminary injunction applications on the grounds that the complaints are inadmissible. In particular, the Court has found that the complainants did not sufficiently substantiate the possibility of a violation of their fundamental rights.

Germany's ratification can now go ahead, even while a main action is formally still pending – in particular, after today's result, the main action will be rejected and therefore may not be pursued by the complainants at all.

This means the Protocol on Provisional Application ("PPA") may come into force as early as Autumn 2021. The PPA provides for a period of provisional application of the UPCA, during which various preparations will be made so that the UPC becomes fully operational. These preparations include the employment of judges and finalising the UPC Rules of Procedure. The Administrative Committee, the Budget Committee and the Advisory Committee will have responsibility for these preparations, having taken over from the UPC Preparatory Committee at the start of the provisional application period. There is no prescribed time-frame for the provisional application period, however, it is currently expected that it may take approximately 12 months.

Germany is expected to hold off on depositing the ratification of the UPCA until the UPC is almost ready to start operating. Once the ratification of the UPCA is deposited, the UPC will come into effect approximately 4 months later. If the provisional application period starts in Autumn 2021, Germany might deposit the ratification of the UPCA in Q2 or Q3 of 2022.  Therefore, the UPC could open its doors in the second half of 2022.

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