Order of 23 June 2021

R e a s o n s:

A.

I.

1

With their constitutional complaints and applications for preliminary injunction, the complainants challenge the Act of Approval that was adopted on 18 December 2020 for the purposes of ratifying the Agreement of 19 February 2013 on a Unified Patent Court (hereinafter: UPC Act of Approval II; cf. Bundestag document, Bundestagsdrucksache – BTDrucks 19/22847, Bundesrat document, Bundesratsdrucksache – BRDrucks 448/20).

[Excerpt from Press Release No. 57/2021 of 9 July 2021

The Agreement on a Unified Patent Court (hereinafter: UPC Agreement) is part of a comprehensive European patent package at the core of which lies the introduction of a European patent with unitary effect as a new intellectual property right recognised at EU level. The UPC Agreement was concluded as an international treaty between the participating EU Member States. It provides for the establishment of a Unified Patent Court (UPC) as a court common to the Contracting Member States for disputes concerning European patents and European patents with unitary effect. The Agreement confers upon the UPC exclusive jurisdiction over the types of patent disputes listed in an extensive catalogue – in particular actions concerning patent infringements, disputes on the validity of patents and certain actions concerning decisions of the European Patent Office. The challenged UPC Act of Approval II replaces the first act of approval to the UPC Agreement (UPC Act of Approval I), which had been adopted by the Bundestag on 10 March 2017 but was later declared void by the Federal Constitutional Court (Order of the Second Senate of 13 February 2020).

The complainants essentially assert that their right to democratic self-determination, as derived from Art. 38(1) first sentence of the Basic Law (Grundgesetz – GG) in conjunction with Art. 20(1) and (2) GG and Art. 79(3) GG, is violated. They claim that the principle of the rule of law, the fundamental right to effective legal protection and EU law are violated, and that the precedence of EU law laid down in Art. 20 of the UPC Agreement amounts to an impermissible encroachment upon German constitutional identity enshrined in Art. 79(3) GG.

End of excerpt]

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1. […]

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For further information on the facts of the case, the Court makes reference to the Order of the Second Senate of 13 February 2020 (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 153, 74 <76 ff. para. 3 ff.>).

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2. […]

II.

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[…]

III.

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[…]

IV.

13-25

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V.

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The Federal Government, the Bundestag und the Bundesrat were given the opportunity to submit statements on the applications for preliminary injunction. The Bundesrat refrained from submitting a statement.

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[…]

VI.

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On 13 January 2021, the Federal President declared vis-à-vis the Federal Constitutional Court – in line with established German state practice (cf. BVerfGE 123, 267 <304>; 132, 195 <195 ff. para. 1 ff.>; 153, 74 <131 para. 90>; […]) – that he would refrain from certifying and promulgating the UPC Act of Approval II until the Federal Constitutional Court renders its decision in the principal proceedings.

B.

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The Court rejects as unfounded the applications for preliminary injunction under § 32 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) on the grounds that the constitutional complaints lodged in the principal proceedings are inadmissible. This concerns both the challenge by which the complainants assert violations of the principle of the rule of law, of the fundamental right to effective legal protection and of EU law (see I. below), and the challenge brought by complainant no. I. 1. asserting that Art. 20 of the UPC Agreement impermissibly encroaches upon Germany’s constitutional identity enshrined in Art. 79(3) GG (see II. below).

I.

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1. Pursuant to § 32(1) BVerfGG, the Federal Constitutional Court may provisionally decide a matter by way of a preliminary injunction if this is urgently required to avert severe disadvantage, prevent imminent violence or for other important reasons in the interest of the common good. An application for preliminary injunction directed against the act of approval to an international treaty may be lodged prior to the certification and promulgation of the act by the Federal President (see a) below). In assessing whether the prerequisites for issuing a preliminary injunction under § 32(1) BVerfGG are met, the Court applies a strict standard. In this assessment, the reasons submitted for the unconstitutionality of the challenged measure are generally not to be taken into account, unless the application made in the principal proceedings is inadmissible from the outset or manifestly unfounded (see b) below).

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a) The domestic act of approval to an international treaty may be challenged by means of a constitutional complaint if the treaty contains provisions that directly affect the legal sphere of the individual complainant (cf. BVerfGE 6, 290 <294 f.>; 40, 141 <156>; 84, 90 <113>; 123, 148 <170>; 153, 74 <131 f. para. 93>). Domestic treaty approval is generally indivisible given that the act of approval and the international treaty in principle form one inseparable whole; as a result, a constitutional complaint constitutes a unitary challenge to both the act of approval and the treaty (cf. BVerfGE 103, 332 <345 and 346>). However, this does not rule out the possibility to limit the proceedings in substance to only certain provisions of the challenged treaty, depending on the complainant’s specific interest in seeking legal protection (cf. BVerfGE 14, 1 <6>; 123, 148 <170, 185>; 142, 234 <245 ff. para. 10 ff.>; 153, 74 <131 f. para. 93>). Nevertheless, constitutional complaints directed against the act of approval to an international treaty must observe the general requirement that the complainant state precisely which provisions are being challenged.

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The act of approval to an international treaty (Art. 59(2) first sentence GG) can be challenged in constitutional complaint proceedings even before it enters into force provided that the legislative process has already been concluded, except for certification of the act by the Federal President and its promulgation (cf. BVerfGE 153, 74 <132 para. 94 with further references>; established case-law). This is because once the instrument of ratification is deposited, the treaty in question becomes binding upon Germany under international law. As it might not be possible to reverse that binding effect unilaterally, legal protection could become futile as the decision rendered in the principal proceedings would likely come too late (cf. BVerfGE 46, 160 <164>; 111, 147 <153>; 132, 195 <233 para. 88>; 143, 65 <88 para. 36>). Germany would thus risk assuming treaty obligations under international law that it could ultimately not fulfil without violating the Basic Law. Constitutional complaints lodged at a later stage could no longer serve the purpose of resolving relevant constitutional issues in advance, thereby safeguarding the peaceful legal order (Rechtsfrieden) and preventing discrepancies between binding obligations under international law and binding requirements under constitutional law (cf. BVerfGE 24, 33 <53 f.>; 123, 267 <329>; 153, 74 <132 para. 94>). It is therefore in accordance with the principle of effective judicial (fundamental rights) protection and with established German state practice to allow an a priori review of future binding treaty provisions at this point in the legislative process (cf. BVerfGE 123, 267 <329>; 153, 74 <132 para. 94>).

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b) When the Court decides on an application for preliminary injunction pursuant to § 32(1) BVerfGG, the reasons submitted for the unconstitutionality of the challenged measure are generally not to be taken into account, unless the declaration sought, or the application made, in the principal proceedings is inadmissible from the outset or manifestly unfounded (cf. BVerfGE 89, 344 <345>; 92, 130 <133>; 103, 41 <42>; 118, 111 <122>; 132, 195 <232 para. 87>; 143, 65 <87 para. 35>; 145, 348 <356 para. 28>; 150, 163 <166 para. 9>; 151, 58 <63 para. 11>; established case-law).

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In assessing whether the prerequisites for issuing an injunction under § 32(1) BVerfGG are met, the Court must generally apply a strict standard given the potentially far-reaching consequences of a preliminary injunction (cf. BVerfGE 55, 1 <3>; 82, 310 <312>; 94, 166 <216 f.>; 104, 23 <27>; 106, 51 <58>; 143, 65 <87 para. 34>). This is especially true if the suspension of a law is sought (cf. BVerfGE 55, 1 <3>; 82, 310 <312>; 94, 166 <216 f.>; 104, 23 <27>; 106, 51 <58>; 121, 1 <17 f.>; 122, 342 <361>; 131, 47 <61>; 132, 195 <232 para. 86>; 140, 99 <106 f. para. 12>; established case-law) given that such a suspension constitutes a considerable encroachment upon inherent competences of the legislator (cf. BVerfGE 131, 47 <61>; 140, 99 <106 f.>). Generally, the reasons in favour of the preliminary injunction sought must carry such weight that they render the issuing of the injunction indispensable. In the particular case where the suspension of a law is sought, the underlying reasons must possess even greater weight (cf. BVerfGE 104, 23 <27 f.>; 117, 126 <135>; 122, 342 <361 f.>; established case-law). In this respect, it is a decisive factor whether the disadvantages are irreversible or at least very difficult to reverse (cf. BVerfGE 91, 70 <76 f.>; 118, 111 <123>; 140, 211 <219 para. 13>; established case-law), as the interest in suspension might then take precedence. The applicable standard is even stricter where the measure in question has implications under international law or for foreign policy (cf. BVerfGE 35, 193 <196 f.>; 83, 162 <171 f.>; 88, 173 <179>; 89, 38 <43>; 108, 34 <41>; 118, 111 <122>; 125, 385 <393>; 126, 158 <167>; 129, 284 < 298>; 132, 195 <232 para. 86>; 143, 65 <87 para. 34>; Order of the Second Senate of 15 April 2021 - 2 BvR 547/21 -, para. 67).

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In light of these standards, it is incumbent upon the complainants to assert and substantiate in their application for preliminary injunction, or in their brief submitted in the constitutional complaint proceedings, which constitutional requirements are violated by the challenged measure. To this end, complainants must demonstrate on what grounds the measure in question violates their fundamental rights (cf. BVerfGE 99, 84 <87>; 120, 274 <298>; 140, 229 <232 para. 9>; 142, 234 <251 para. 28>; 149, 346 <359 para. 23>). If issues of constitutional law raised by the complainants’ case have already been addressed in existing case-law, the asserted rights violation must be substantiated by the complainants in consideration of the constitutional standards developed by the Court (cf. BVerfGE 99, 84 <87>; 101, 331 <346>; 123, 186 <234>; 142, 234 <251 para. 28>; 149, 346 <359 para. 23>).

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2. Given the extensive case-law on Art. 23(1) GG developed by the Second Senate of the Federal Constitutional Court, and especially in light of the Order of 13 February 2020 (BVerfGE 153, 74), which concerns the treaty at issue here, the complainants’ submissions do not meet these requirements. The complainants did not sufficiently demonstrate and substantiate why and how the challenged UPC Agreement could violate their fundamental rights. This holds true for both the challenge brought by complainant no. I.1., claiming violations of the right to democratic self-determination derived from Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) and Art. 79(3) GG (see a) below), and the challenge brought by complainants nos. I.2. and I.3., claiming that the UPC Agreement violates their right to effective legal protection under Art. 19(4) in conjunction with Art. 97(1) GG and Art. 6(1) of the European Convention on Human Rights (see b) below). The submission of complainant no. II., asserting a possible violation of his right to democratic self-determination derived from Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) and Art. 79(3) GG also does not satisfy the substantiation requirements under § 23(1) second sentence and § 92 BVerfGG (see c) below).

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a) Complainant no. I.1. claims a violation of his right to democratic self-determination derived from Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) and Art. 79(3) GG, essentially on the grounds that the UPC Agreement, in its organisational structuring of the Unified Patent Court and in the legal status afforded judges, violates the principle of the rule of law enshrined in Art. 20(3) GG (for the further objections raised by this complainant in relation to Art. 20 of the UPC Agreement, see para. 72 ff. below). However, he fails to demonstrate why and how the asserted deficits infringe not only the principle of the rule of law but also encroach upon the principle of democracy. Demonstrating an encroachment upon the principle of democracy would have been necessary given that it is this principle alone, enshrined in Art. 20(1) and (2) GG, that gives rise to the individual right to democratic self-determination that can be invoked by citizens through Art. 38(1) first sentence GG.

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aa) It follows from Art. 23(1) third sentence GG that a transfer of sovereign powers to the European Union must not encroach upon the Basic Law’s core – its constitutional identity –, which enjoys absolute protection under Art. 79(3) GG and is beyond the reach of European integration. When conducting a review on the basis of constitutional identity (identity review – Identitätskontrolle), the Federal Constitutional Court therefore examines whether a transfer of sovereign powers to the European Union or – as is the case here – to an organisation that supplements or is otherwise closely tied to the European Union encroaches upon the principles that are declared inviolable by Art. 79(3) GG (cf. BVerfGE 142, 123 <195 para. 138> with reference to BVerfGE 123, 267 <344, 353 f.>; 126, 286 <302>; 129, 78 <100>; 134, 366 <384 f. para. 27>). These principles are the protection of the human dignity core enshrined in fundamental rights as per Art. 1 GG (cf. BVerfGE 140, 317 <341 para. 48>) as well as the basic tenets that inform the principles of democracy, the rule of law, the social state and the federal state laid down in Art. 20 GG (cf. BVerfGE 142, 123 <195 para. 138>).

55

Yet asserting a violation of constitutional identity in constitutional complaint proceedings, by invoking the right to democratic self-determination derived from Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) and Art. 79(3) GG (cf. BVerfGE 89, 155 <187>; 123, 267 <340>; 129, 124 <169, 177>; 132, 195 <238 para. 104>; 135, 317 <386 para. 125>; 151, 202 <286 para. 118>), is subject to stringent requirements. The underlying individual right to democratic self-determination that can be invoked by each citizen through Art. 38(1) first sentence GG is strictly limited to the core of the principle of democracy rooted in human dignity, which Art. 79(3) declares to be beyond the reach of even the Constitution-amending legislator. Apart from that the Basic Law does not confer a right upon citizens allowing them to subject all democratic majority decision taken by Parliament to a review of lawfulness, as it is not the purpose of the right to democratic self-determination to subject the contents of democratic decision-making to substantive review but to facilitate democratic decision-making processes as such (cf. BVerfGE 129, 124 <168>; 134, 366 <396 f. para. 52>; 142, 123 <190 para. 126>; 151, 202 <286 para. 118>).

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When complainants, in bringing challenges on the basis of Art. 38(1) first sentence GG, seek an identity review on the grounds of a possible encroachment upon constitutional principles other than the principle of democracy – such as the principle of the rule of law – they must demonstrate that there is at least a sufficient connection to the principle of democracy. This is in line with by now established case-law, developed by the Second Senate, according to which only the principle of democracy confers standing upon individuals to directly challenge violations in this context (cf. BVerfGE 123, 267 <332 f.>; 129, 124 <177>; 132, 195 <238 para. 104>; 134, 366 <397 para. 53>; 135, 317 <386 para. 125>; 142, 123 <190 para. 126>; 146, 216 <249 f. para. 44 ff.>; 153, 74 <139 para. 107>). Based on these standards, the Second Senate has in the past allowed challenges directed against the Lisbon Treaty asserting possible violations of the principle of the social state under Art. 20(1) GG, in constitutional complaint proceedings brought by complainants who had claimed standing on the grounds of Art. 38(1) first sentence GG. In that case, the Court found the constitutional complaints to be admissible because the complainants had sufficiently asserted and substantiated that the competences conferred upon the European Union in the Lisbon Treaty could restrict the Bundestag’s democratic latitude in social policy matters to such an extent that the Bundestag would no longer be able to satisfy the minimum requirements set by the principle of the social state arising from Art. 79(3) GG (cf. BVerfGE 123, 267 <332 f.>).

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bb) In the present proceedings, complainant no. I.1. does not sufficiently demonstrate and substantiate, in accordance with the requirements set by § 23(1) second sentence and § 92 BVerfGG, why and how ratification of the UPC Act of Approval II could lead to a violation of Art. 38(1) first sentence GG. In particular, it is not clear how and to what extent the objections raised by the complainant with regard to the organisational structuring of the Unified Patent Court, and the legal status of its judges, are connected to the principle of democracy. Demonstrating such a connection would have been necessary given that it is this principle alone that confers standing upon citizens through Art. 38(1) first sentence GG.

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The principle of the rule of law and the principle of democracy are of course inherently interrelated, as requirements deriving from the rule of law keep democratic majority rule contained in a manner that provides for the necessary moderation, curtailing and oversight of power ([...]). However, not all violations of rule-of-law guarantees invariably amount to a violation of the principle of democracy. To establish that the challenged treaty encroaches upon the guarantees deriving from the principle of democracy, complainants must thus demonstrate, for instance, that the treaty entails a transfer of sovereign powers to the European Union – or to EU institutions, bodies, offices and agencies – that creates new sovereign powers, i.e. that confers upon the recipient institution the competence to thereafter decide on its own competences (Kompetenz-Kompetenz) (cf. BVerfGE 89, 155 <187 f., 192, 199>; 123, 267 <349>; cf. also BVerfGE 58, 1 <37>; 104, 151 <210>; 132, 195 <238 para. 105>; 142, 123 <191 f. para. 130>; 146, 216 <250 para. 48>; 151, 202 <287 para. 121>), or that amounts to a blanket authorisation for exercising public authority without creating necessary safeguards (cf. BVerfGE 58, 1 <37>; 89, 155 <183 f., 187>; 123, 267 <351 ff.>; 132, 195 <238 para. 105>; 135, 317 <399 para. 160>; 142, 123 <191 f. para. 130>; 151, 202 <287 para. 121>), or that considerably curtails the Bundestag’s powers (cf. BVerfGE 123, 267 <341>; 142, 123 <190 para. 125>; 151, 202 <288 f. para. 123>), in particular its budgetary powers (cf. BVerfGE 123, 267 <359>; 129, 124 <177, 181>; 151, 202 <288 para. 123>) and its overall budgetary responsibility (cf. BVerfGE 123, 267 <359>; 129, 124 <177>; 132, 195 <239 para. 106>; 135, 317 <399 f. para. 161>; 142, 123 <195 para. 138>; 146, 216 <253 f. para. 54>; 151, 202 <288 para. 123>). A violation would also be sufficiently asserted if complainants demonstrated an impairment of their right to free and equal participation, as citizens, in the legitimation and influencing of public authority that affects them, showing that they would be subjected to a political authority that they cannot escape and in regard of which they cannot in principle influence, on free and equal terms, decisions on the persons in power and on substantive issues (cf. BVerfGE 123, 267 <341>; 142, 123 <191 para. 128>; 151, 202 <285 f. para. 117>). It would also be sufficient if complainants demonstrated that the organisational structuring of the Unified Patent Court and its institutions did not ensure the minimum level of democratic legitimation and oversight set by Art. 23(1) third sentence in conjunction with Art. 79(3) in conjunction with Art. 20(1) and (2) GG (cf. BVerfGE 89, 155 <208>; 134, 366 <389 f. para. 32>; 142, 123 <220 para. 189>; 151, 202 <290 ff. para. 127 ff.>).

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However, in his submission in the present proceedings, complainant no. I.1. merely claims that Art. 6 ff. of the UPC Agreement are contrary to Art. 97(1) GG, in conjunction with Art. 6(1) of the European Convention on Human Rights, and violate the principle of the rule of law under Art. 20(3) GG, on the grounds that judges at the Unified Patent Court are appointed for a six-year term, that this term is renewable, and that no adequate remedy is available to challenge a removal from office. Yet it remains unclear why and how this might affect the principle of democracy. The fact that the complainant’s submission also contains a general reference to the principle of the separation of powers, which according to complainant no. I.1. is rooted in the principle of democracy, does not merit a different conclusion.

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Moreover, the complainant failed to sufficiently address what minimum standards derive from constitutional law with regard to the selection, re-appointment and removal from office of judges. While the Second Senate, in its decision on the appointment of temporary judges to German administrative courts, held – albeit with regard to the principle of the rule of law (cf. BVerfGE 148, 69 <89 para. 53>) – that the temporary appointment of judges with the possibility of subsequent re-appointment could amount to an unconstitutional restriction of judicial independence in violation of constitutional law (cf. BVerfGE 148, 69 <126 f. para. 140 ff.>), the Senate qualified its findings by recognising that different rules might apply in relation to judges appointed to Land constitutional courts or to lay judges (cf. BVerfGE 148, 69 <121 para. 128 f., 129 f. para. 148>). This applies all the more with regard to international tribunals, as particular considerations arise in connection with the transfer of judicial powers to an international organisation, which must be taken into account and which may justify deviations from the standards set by the Basic Law for ensuring judicial independence. At international tribunals, judicial appointments for a fixed term are the norm and terms are often renewable. At the level of the European Union, both Art. 253(1) second half-sentence and Art. 253(4) of the Treaty on the Functioning of the European Union (TFEU) – for the Court of Justice of the European Union – and Art. 254(2) second and fourth sentence TFEU – for the General Court – limit the judicial term to six years while expressly allowing judges to be re-appointed (although this rule is not without criticism, cf. in this regard Everling, DRiZ 1993, p. 5 <6>; Jacobs, in: Liber amicorum Lord Slynn of Hadley, 2000, p. 17 <24  f.>; Baltes, Die demokratische Legitimation und die Unabhängigkeit des EuGH und des EuG, 2011, p. 32 ff., 203 f.; Stürner, JZ 2017, p. 905 <906 f.>). By contrast, judges at the European Court of Human Rights are elected for a nine-year term while re-election is now expressly ruled out since Protocol No. 14 to the Convention officially entered into force on 1 June 2010 (cf. Art. 23(1) second sentence of the European Convention of Human Rights).

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Complainant no. I.1. also failed to sufficiently substantiate his submission to the extent that he asserts the lack of a legal remedy for judges at the Unified Patent Court against their removal from office. Ensuring effective legal protection is indeed a fundamental requirement arising from the principle of the rule of law (cf. BVerfGE 149, 346 <363 f. para. 35>). In the context of judges’ removal from office, effective legal protection is indispensable for safeguarding judicial independence. Yet it is not necessary to determine in the present proceedings the exact requirements applicable in this regard. This is because complainant no. I.1. has in any case not sufficiently demonstrated how the lack of a legal remedy for judges at the Unified Patent Court could affect the complainant’s own right to democratic self-determination derived from Art. 38(1) first sentence GG.

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b) To the extent that complainants nos. I.2. and I.3. claim that the UPC Agreement violates their fundamental right to effective legal protection under Art. 19(4) in conjunction with Art. 97(1) GG and Art. 6(1) of the Convention, their constitutional complaint again fails to satisfy the substantiation requirements set by §23(1) second sentence and § 92 BVerfGG.

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aa) If the legislator authorises international organisations or institutions to exercise public authority directly vis-à-vis persons concerned in Germany, it must ensure effective legal protection in accordance with the decision on objective constitutional values enshrined in Art. 19(4) GG (cf. BVerfGE 58, 1 <40 ff.>; 59, 63 <85 ff.>; 73, 339 <376>; 149, 346 <364 para. 36>). This corresponds to the standards derived from Art. 6(1) of the Convention as interpreted by the European Court of Human Rights, which sets requirements that continue to bind States Parties even if they transfer sovereign powers to international organisations (cf. BVerfGE 149, 346 <364 f. para. 38> with further references).

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Effective legal protection requires that the exercise of public authority is subject to review and oversight by judges whose personal and professional independence and impartiality must be ensured, and that access to a court or a body resembling a court is guaranteed, ensuring at least that judicial review can be sought in a timely manner and as comprehensively as possible against state action and acts for which the state bears responsibility (cf. BVerfGE 8, 274 <326>; 51, 176 <185>; 54, 39 <41>; 58, 1 <40>; 96, 27 <39>; 101, 106 <122 f.>; 101, 397 <407>; 103, 142 <156>; 104, 220 <231>; 149, 346 <363 f. para. 35>). Ensuring the personal and professional independence of judges (Art. 97 GG) is crucial in this regard (cf. BVerfGE 103, 111 <140>; 133, 168 <202 para. 62>).

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However, in order to assert a violation of their own fundamental right under Art. 19(4) GG on the grounds that the legislative framework governing the status of judges impairs the effectiveness of judicial protection, complainants must demonstrate that the legislative design in question presently – which means at the time, actually and not just potentially – affects their own legal position (cf. BVerfGE 140, 42 <58 para. 59>). The mere possibility that the complainants’ rights might be affected at some point in the future is not sufficient (cf. BVerfGE 114, 258 <277>; 140, 42 <48 para. 59>). In addition to being presently affected, complainants must also be personally and directly affected. This is the case if the legal provision at issue is directly applicable to complainants and effects changes to their legal position without requiring any further implementation measure (cf. BVerfGE 1, 97 <101 ff.>; 102, 197 <206 f.>; 110, 141 <151 f.>).

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bb) Measured against these standards, complainants nos. I.2. and I.3. did not demonstrate that the UPC Act of Approval II affects them personally, presently and directly in relation to their fundamental right under Art. 19(4) GG.

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Complainant no. I.2. states that as a software development company specialising in artificial intelligence programming it might end up being involved in patent disputes before the European Patent Office and eventually before the Unified Patent Court. The complainant claims that if this scenario came to pass, its right to effective legal protection could be affected given that the organisational structuring of the Unified Patent Court fell short of rule-of-law standards. However, the complainant’s submission in this regard is limited to mere vague assertions of future circumstances that could potentially affect the complainant at some point but do not fall within the scope of protection of Art. 19(4) GG. It appears uncertain whether complainant no. I.2. will ever actually be involved in a specific dispute before the Unified Patent Court. It is also not certain that the risk of conflicting patent applications, as asserted by complainant no. I.2., will ever materialise nor is it clear that any such dispute will actually be decided by the Unified Patent Court. The further submission of 2 February 2021, in which complainant no. I.2. states that it has filed an opposition to a patent granted by the European Patent Office, does not lead to a different conclusion.

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Complainant no. I.3., a non-profit organisation advocating for open access standards in software development, failed to demonstrate and substantiate under what circumstances it could become a party to patent litigation before the Unified Patent Court. In this regard, the submission received from complainant no. I.3. does not sufficiently specify what kind of disputes the complainant expects to be involved in. Rather, it is merely stated that the complainant could theoretically be a party to a patent dispute before the Unified Patent Court. It is not ascertainable how any potential deficits regarding the legal status of judges at the Unified Patent Court, as asserted by complainant no. I.3., presently and directly affect the complainant’s right to effective legal protection under Art. 19(4) GG. 

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c) The submission of complainant no. II., asserting a possible violation of his right to democratic self-determination derived from Art. 38(1) first sentence in conjunction with Art. 20(1) and (2) and Art. 79(3) GG, does also not satisfy the substantiation requirements under § 23(1) second sentence and § 92 BVerfGG. Complainant no. II. raises numerous objections to the UPC Agreement and the act of approval ratifying it. However, the complainant fails to demonstrate a specific connection to constitutional standards [that confer individual standing]. In particular, it is not clear from the complainant’s submission why and how his right to democratic self-determination could be affected even if the UPC Agreement were indeed found to have the alleged deficits regarding the principle of the rule of law.

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aa) To the extent that complainant no. II. challenges the UPC Agreement on the grounds that it is incompatible with EU law, a violation of his right to democratic self-determination derived from Art. 38(1) first sentence GG is ruled out from the outset (cf. already BVerfGE 153, 74 <141 f. para. 114>). EU law does not give rise to formal or substantive requirements that could lead to the invalidity of a German domestic law (cf. BVerfGE 31, 145 <174 f.>; 82, 159 <191>; 110, 141 <154 f.>; 115, 276 <299 f.>; 153, 74 <141 f. para. 114>; Federal Constitutional Court, Order of the Second Senate of 27 April 2021 - 2 BvR 206/14 -, para. 38). With the exception of violations of the rights guaranteed in the EU Charter of Fundamental Rights (cf. BVerfGE 152, 152 <169 para. 42 f., 179 ff. para. 63 ff.>; 152, 216 <236 para. 50, 237 para. 52>; Federal Constitutional Court, Order of the Second Senate of 1 December 2020 - 2 BvR 1845/18 inter alia -, para. 36; Order of 27 April 2021 - 2 BvR 206/14 -, para. 39 f.), infringements of EU law can generally not therefore be challenged in constitutional complaint proceedings (cf. BVerfGE 153, 74 <141 f. para. 114 f.>).

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bb) As regards the challenge brought by the complainant that the exit of the United Kingdom from the European Union opposes the entry into force of the UPC Agreement, this concerns specific questions of interpretation relating to the Agreement but bears no connection to any constitutional standards deriving from the Basic Law. Such issues can in principle not be challenged in constitutional complaint proceedings.

II.

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As regards complainant no. I.1., his constitutional complaint is also not sufficiently substantiated to the extent that it is directed against the precedence of EU law laid down in Art. 20 of the UPC Agreement.

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1. a) According to established case-law, the Basic Law, in its Art. 23(1) first sentence, sets out a commitment to recognise the legal effects of EU law and to enforce it (cf. BVerfGE 126, 286 <302>; 140, 317 <335 para. 37>; 142, 123 <186 f. para. 117>). This implies that with the act of approval adopted in accordance with Art. 23(1) second sentence GG, EU law is afforded precedence of application over domestic law (cf. BVerfGE 73, 339 <375>; 123, 267 <354>; 129, 78 <100>; 134, 366 <383 para. 24>). As the Court has reiterated in its case-law, this precedence over domestic law in principle also applies where EU law conflicts with the Constitution, generally meaning that the relevant provision of national constitutional law is rendered inapplicable in the specific case of conflict (cf. BVerfGE 126, 286 <301>; 129, 78 <100>; 140, 317 <335 para. 38 f.>; 142, 123 <187 para. 118>). Yet this precedence of application only exists by virtue of, and within the limits set by, its constitutional foundations (cf. BVerfGE 73, 339 <375>; 75, 223 <242>; 123, 267 <354>; 134, 366 <381 f. para. 20 f.>). The openness of the domestic legal order to EU law, which has its basis in the design of the Basic Law and is given effect by the legislator deciding on European integration matters, is subject to limits that derive not only from the European integration agenda (Integrationsprogramm), for which the legislator bears responsibility, but also from Germany’s constitutional identity enshrined in the Basic Law (Art. 23(1) third sentence in conjunction with Art. 79(3) GG), which is beyond the reach of both constitutional amendment and European integration. The precedence of application of EU law only applies to the extent that the Basic Law and the domestic act of approval permit or provide for a transfer of sovereign powers (cf. BVerfGE 37, 271 <279 f.>; 58, 1 <30 f.>; 73, 339 <375 f.>; 75, 223 <242>; 89, 155 <190>; 123, 267 <348 ff., 402>; 126, 286 <302>; 129, 78 <99>; 134, 366 <384 para. 26>; 140, 317 <336 para. 40>; 142, 123 <187 f. para. 120>; 154, 17 <89 f. para. 109>). It is only within these limits that the application of EU law in Germany is based on democratic legitimation (cf. BVerfGE 142, 123 <187 f. para. 120>).

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It is incumbent upon the Federal Constitutional Court to uphold these constitutional limits, in particular when conducting an identity review or an ultra vires review. Other constitutional and supreme courts in the EU Member States recognise similar constitutional reservations (cf. in this regard for the Kingdom of Belgium: Constitutional Court, Decision No. 62/2016 of 28 April 2016, para. B.8.7.; for the Kingdom of Denmark: Højesteret, Judgment of 6 April 1998 - I 361/1997 -, section 9.8.; Judgment of 6 December 2016 - I 15/2014 -; for the Republic of Estonia: Riigikohus, Judgment of 12 July 2012 - 3-4-1-6-12 -, paras. 128, 223; for the French Republic: Conseil constitutionnel, Decision No. 2006-540 DC of 27 July 2006, para. 19; Decision No. 2011-631 DC of 9 June 2011, para. 45; Decision No. 2017-749 DC of 31 July 2017, para. 9 ff.; Conseil d’État, Decision No. 393099 of 21 April 2021, para. 5; for Ireland: Supreme Court of Ireland, Crotty v. An Taoiseach, <1987>, I.R. 713 <783>; S.P.U.C. <Ireland> Ltd. v. Grogan, <1989>, I.R. 753 <765>; for the Italian Republic: Corte Costituzionale, Decision No. 183/1973, para. 3 ff.; Decision No. 168/1991, para. 4; Decision No. 24/2017, para. 2; for the Republic of Latvia: Satversmes tiesa, Judgment of 7 April 2009 - 2008-35-01 -, para. 17; for the Republic of Poland: Trybunał Konstytucyjny, Judgment of 11 May 2005 - K 18/04 -, paras. 4.1., 10.2.; Judgment of 24 November 2010 - K 32/09 -, para. 2.1. ff.; Judgment of 16 November 2011 - SK 45/09 -, paras. 2.4., 2.5.; for the Kingdom of Spain: Tribunal Constitucional, Declaration of 13 December 2004, DTC 1/2004; for the Czech Republic: Ústavní Soud, Judgment of 31 January 2012 - 2012/01/31 - Pl. ÚS 5/12 -, section VII; for the Republic of Croatia: Ustavni Sud, Decision of 21 April 2015 - U-VIIR-1158/2015 -, para. 60).

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Giving absolute precedence to EU law would not be compatible with these reservations of constitutional review recognised in the context of European integration (cf. BVerfGE 142, 123 <203 para. 153>; 153, 74 <163 para. 166>; 154, 17 <151 para. 234>). The underlying standards of the Basic Law, which bind all constitutional organs of the Federal Republic of Germany, may not be relativised or undermined.

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Neither the Treaty on European Union nor the Treaty on the Functioning of the European Union contains an express guarantee specifying the precedence of application (Anwendungsvorrang) accorded to EU law. While the protocol on subsidiarity annexed to the Treaty of Amsterdam (cf. Protocol No. 30 on the application of the principles of subsidiarity and proportionality, OJ EC 1997, C 340 of 10 November 1997, p. 105, no. 2) does contain a reference – albeit one that is open to and in need of interpretation – to the case-law developed by the Court of Justice on the precedence of EU law, there was no agreement among the contracting parties to expressly recognise an absolute and unconditional precedence in this respect. Similarly, the Member States made a deliberate choice not to include any express guarantee in the Lisbon Treaty – in breaking with the ultimately abandoned draft European Constitution (cf. Art. I-6 of the Treaty establishing a Constitution for Europe of 29 October 2004, OJ EC, C 310/12) – opting to only include a reference in an annexed declaration (cf. Declaration No. 17 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007, OJ EC, C 326 of 26 October 2012, p. 346). According to that declaration, the fact that the precedence of EU law was not included in the treaty text was not supposed to change the status quo ante. It was on this basis that Member States had no constitutional objections to Declaration No. 17 (cf. only BVerfGE 123, 267 <401 f.>; moreover Conseil constitutionnel, Decision No. 2004-505 DC of 19 November 2004, para. 9 ff.; […]).

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b) It must therefore be assumed that Art. 20 of the UPC Agreement simply aims to clear up any doubts as to the Agreement’s compatibility with EU law and has no bearing on the status quo in the relationship between EU law and national constitutions. In the interpretation of Art. 20 of the UPC Agreement, it must be taken into account that this provision was drafted in light of Opinion 1/09 of the Court of Justice of the European Union of 8 March 2011, in which the Court of Justice referred to the primacy of EU law over the laws of the Member States as laid down in its established case-law together with ensuring respect for the autonomy of the EU legal order as essential prerequisites of the UPC Agreement’s compatibility with EU law (cf. CJEU, Opinion of 8 March 2011, 1/09, European Court Reports 2011, I-1143 <1168 paras. 65, 67>). It must be noted that the Court of Justice’s opinion concerned the previous draft of the UPC Agreement, specifically Art. 14a of the draft agreement (former version), which in the clause on applicable law first listed the Agreement itself while only listing EC law in second place, and which only spoke of “directly applicable provisions of Community law” (cf. on the former draft version, CJEU, Opinion of 8 March 2011, 1/09, European Court Reports 2011, I-1143 <1150 para. 9>). This interpretation is further supported by the fact that not all EU Member States are also Contracting Member States to the UPC Agreement, which means that Art. 20 UPC Agreement does not govern the relationship between EU law and national constitutions.

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This interpretation is in line with the view expressed by the Federal Government in its explanatory memorandum to the draft act of approval, stating that Art. 20 of the UPC Agreement was meant to “clarify” that in terms of its relation to EU law, the Unified Patent Court, as an international tribunal, has the same status as domestic courts. In this context, the Federal Government expressly emphasised that Art. 20 of the UPC Agreement had no bearing on the powers of constitutional review vested in the Federal Constitutional Court under the Basic Law. The Federal Constitutional Court held, in its judgment on the Lisbon Treaty, that it was irrelevant whether the precedence of application is provided for in the Treaties as such or in Declaration No. 17 annexed to the Final Act to the Treaty of Lisbon. Based thereon, the Federal Government assumed that neither Art. 20 of the UPC Agreement nor the corresponding recital, which speaks of “the full application of, and respect for, Union law“ would have any bearing on the “relationship between the legal orders, as this issue has long been resolved” (cf. BTDrucks 19/22847, p. 10).

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This interpretation is also in line with the protocol declaration by the Länder Bavaria, Baden-Württemberg, Hamburg and Mecklenburg-Western Pomerania submitted to the record in the Bundesrat, which states that Art. 20 of the UPC Agreement together with the UPC Act of Approval II must be interpreted in conformity with the Constitution to the effect that adherence to fundamental guarantees of domestic constitutional law must be ensured, especially regarding the precepts enshrined in Art. 1, Art. 20(1) and (2) in conjunction with Art. 79(3) GG and the competence of the Federal Constitutional Court to review whether a transfer of sovereign powers to a European or international organisation respects indispensable minimum standards set by the Constitution (cf. Bundesrat minutes of plenary proceedings no. 998 of 18 December 2020, p. 524).

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It must be noted that so far, the Federal Government has not communicated this understanding to the other Contracting Member States.

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2. Complainant no. I.1. does not sufficiently address these considerations. Rather, his submission in this context merely refers to the Order of the Second Senate of 13 February 2020 and rests on the sole argument that Art. 20 of the UPC Agreement is contrary to Art. 79(3) GG on the grounds that it would effectively deprive him of the possibility to seek an identity review.