Case law Developments in PIL

The European Patent Court – Thwarted by the German Constitutional Court

The raising of a problem child

The creation of the European Patent Court has been fraught with difficulties. After Spain and Italy had impeded its establishment for linguistic concerns, it was embedded in 2013 in an international treaty, the Agreement on a European Patent Court. In March 2017, the German Parliament (Bundestag) passed a law ratifying the Agreement. A mere 35 of its more than 600 members were present at the vote.

A patent lawyer with a constitutional hunch

Patent lawyer Dr Ingve Björn Stjerna from Düsseldorf was unhappy. He saw his right of democratic representation, protected under Art 38 of the German Constitution (Grundgesetz), being violated. That is why he brought a constitutional complaint against the law by which the German Parliament had consented to the Agreement.

A court concerned about German sovereignty

The German Constitutional Court (Bundesverfassungsgericht) affirmed the complaint. It declared the German act assenting the Agreement to be void. In the view of the majority of the Justices, the procedure in which the law had not been adopted was defective. The act would require the consent by at least two thirds of all members of Parliament and of the Federal Council (Bundesrat), which is necessary normally only for amendments to the text of the Constitution (Art 79(2) German Constitution).

The rationale of this ruling was the following: In the Court’s view, the act ratifying the Agreement on the European Patent Court materially alters the German Constitution. By creating a new international court, Germany would transfer sovereign powers, which it would find impossible to regain later. As a result, German citizens would no longer be able to influence the exercise of the state powers through their vote. Hence their right of being democratically represented would be violated.

A dissenting opinion concerned about European integration

The decision was rendered by a 5 to 3 majority. In a dissenting opinion, the minority criticised the Court for having overstretched the right of democratic representation (Art 38 of the German Constitution). The latter would not be put into question by a merely formal mistake in the legislative procedure. Furthermore, the dissenters warned that the position taken by the majority would endanger further European integration, which enjoys constitutional status in Germany.


It is remarkable that the Constitutional Court requires a majority of two thirds of the Parliament for the act ratifying the Agreement on a European Patent Act. Can it really be said that this act amounts to a change of the German Constitution? Doubts are in order.

The court also conveniently ignores that judges are not elected representatives. It is therefore strange to invoke the right of democratic representation to invalidate such a law.

Even more peculiar, from an outsider’s view, must seem the fact that a single person can trigger the constitutional review of a legislative act based on merely formal errors. This creates opportunities for putting spanners in the work of the legislative procedure.

The German Constitutional Court’s emphasis on sovereignty is odd and throws a spanner in the works of further European integration. There seems to be an agenda behind this. Mind you that this is the same chamber of the Court that has repeatedly questioned the legality of monetary policy measures by the European Central Bank.

Fortunately, most other Member States do not have courts with similar far-reaching powers and extreme positions. But already, some – like Hungary – are starting to imitate Germany and endow their Constitutional Courts with powers to control the EU and its institutions. If more were to follow that path, this would surely be the end of European integration.

The Upshot

The decision by the Constitutional Court does not make the creation of the European Patent Court impossible. The German Parliament and the Federal Council have to vote for the law once more with two thirds of their members. However, precious time will be lost again.