Page 1
Guiding principles
to the decision of the Second Senate of February 13, 2020
- 2 BvR 739/17 -
1. The protection of Article 38.1 sentence 1 GG extends to the
Maintaining the requirements of Article 23.1 of the Basic Law on effective
Transfer of sovereign rights. Citizens have to
Securing their democratic influence in the process of
European integration is basically a right to have a
Transfer of sovereign rights only in the Basic Law for this
proposed forms of Art. 23 Para. 1 Clause 2 and Clause 3, Art. 79
Paragraph 2 of the Basic Law takes place (formal transfer control). (97 f.)
2. Acts of Consent to International Law Treaties
supplementary or other special proximity to the integrative
on program of the European Union are subject to Art. 23 Para. 1
To measure GG. (118)
3. A law of consent to an international contract, which under
Violation of Article 23 paragraph 1 sentence 3 in conjunction with Article 79 paragraph 2
GG has passed, the exercise of public authority by
gane, institutions and other bodies of the European Union
or one with her in a supplementary or other special
Closeness of relationship between intergovernmental institutions
therefore legitimize and hurt the citizens in their
right equivalent to fundamental rights under Article 38 (1) sentence 1, Article 20 (1)
and sec. 2 in conjunction with Art. 79 sec. 3 GG. (133)
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FEDERAL CONSTITUTIONAL COURT
- 2 BvR 739/17 -
IN THE NAME OF THE PEOPLE
In the process
about
the constitutional complaint
of Dr. S…,
against the law on the Convention of 19 February 2013 on an
United Patent Court in connection with the Convention on a
Unified patent court
and application for an interim measure
the Federal Constitutional Court - Second Senate -
with the participation of the judges
President Voßkuhle,
Huber,
Hermanns,
Miller,
Kessal-Wulf,
King,
Maidowski,
Langenfeld
decided on February 13, 2020:
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2nd
1. The first sentence of Article 1 (1) of the Law on the Convention of
February 19, 2013 on a Unified Patent Court (decision of the
Bundestag of 10 March 2017, Plenary Minutes 18/221, p. 22262,
Bundestag printed paper 18/11137) injured the complainant in
his right equivalent to fundamental rights under Article 38 paragraph 1 sentence 1 in
In conjunction with Article 20 paragraph 1 and paragraph 2 in conjunction with
Article 79 paragraph 3 of the Basic Law.
2. The first sentence of Article 1 (1) of the Law on the Convention of
February 19, 2013 on a Unified Patent Court (Bundestag
printed matter 18/11137, decision of the Bundestag of 10 March 2017,
Plenary minutes 18/221, p. 22262) is in Article 23 paragraph 1 sentence 3 in
Connection incompatible with Article 79 paragraph 2 of the Basic Law
and void.
3. This completes the application for an interim order
nung.
4. The Federal Republic of Germany has the complainant's
to reimburse necessary expenses.
Reasons :
A.
I.
The constitutional complaint is directed against that of the Bundestag and Bundesrat
Law passed on the Convention of 19 February 2013 on an
Uniform patent court (hereinafter: EPGÜ-AufentG), with which the requirements
for the ratification of the abovementioned agreement (OJ EU No. C 175 of 20 June
2013, p. 1 ff.) Should be created (BTDrucks 18/11137; BRDrucks 202/17).
The Convention on a Unified Patent Court (hereinafter: EPC) is
an international treaty, which is exclusively member states of the European
Union is open (cf. Art. 84 para. 1 and para. 4 in conjunction with Art. 2 letter b EPCC). With
it is said to have a unitary patent law supported by the majority of the member states.
to be erected. It is part of a wider European regulatory framework
kets on patent law, the core of which is the introduction of a European patent
uniform effect as a new property right at the level of the European Union
by means of enhanced cooperation in accordance with Art. 20 TEU, Art. 326 ff. TFEU
(see BTDrucks 18/8827, p. 1). The regulatory package also includes the ordinance
Regulation (EU) No. 1257/2012 of the European Parliament and of the Council of 17th December
December 2012 on the implementation of enhanced cooperation in the area of
Creation of unitary patent protection (OJ EU No. L 361 of December 31
2012, p. 1; No.L 307 of October 28, 2014, p. 83) and Regulation (EU)
Council No. 1260/2012 of December 17, 2012 on the implementation of the reinforcement
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3rd
4th
5
cooperation in the area of ​​creating a uniform patent protection in
With regard to the applicable translation regulations (OJ EU No. L 361 of
December 31, 2012, p. 89). These are not the subject of the present constitution
complaint.
1. a) According to the traditional (German) understanding, patents are granted by the state
te subjective exclusion rights (see Ann, in: Kraßer / Ann, Patentrecht, 7th edition 2016,
§ 1 marginal no. 1 ff .; Bacher, in: Benkard, Patentgesetz, 11th edition 2015, § 1 marg. 2) for new ones
technical inventions based on an inventive step and commercial
are applicable (see Section 1 (1) PatG). You will be placed in an administrative
issued by administrative act and provide after ownership with the property
comparable absolute rights (cf. Bacher, in: Benkard, Patentgesetz, 11th ed.
2015, § 1 marginal no. 2a ff.), Which are enforced against third parties before the civil courts
that can.
Patent protection is subject to the principle of territoriality, according to which a
the right granted patent only takes effect there (see BGHZ 49, 331
<333 f.>).
b) In addition to national patents, there has been a European
patent based on the European Patent Convention of October 5
1973 - EPC (cf. BGBl 1976 II p. 826, amended by decision of the administrative
Council of 21 December 1978 <BGBl 1979 II p. 349> as well as through the Act
63 EPC of 17 December 1991 <BGBl 1993 II p. 242> and to the revision
sion of the Convention on the Grant of European Patents of 29
November 2000 <BGBl 2007 II p. 1083>) and by the European Patent Office
is granted. Its sponsor, the European Patent Organization, is one of the European
intergovernmental body in the sense of
24 sec. 1 GG, the task of which is to maintain an independent and automatic
patent system (see Haedicke, in: Schulze / Zuleeg / Kadelbach, Euro-
parecht - Handbook for German Legal Practice, 3rd edition 2015, § 21 marg. 79). The
However, the European Patent Office does not grant a uniform property right, but provides
a uniform grant procedure for the contracting states involved
supply. Direct legal effects and consequences of infringement of a European patent
essentially in accordance with the law of the contracting states for which it is issued (cf.
Art. 64 EPC; Kolle, in: Benkard, European Patent Convention, 3rd edition 2019,
Art. 2 marg. 2 f., 15). In this respect, the European patent is also called a "bundle patent"
referred to (see e.g. Ullmann / daughter, in: Benkard, patent law, 11th ed.
2015, international part marg. 104; Arntz, EuZW 2015, p. 544 <544>). For certain
Products that are ancillary to a patent that has already been granted can be
tent protection can be extended with "supplementary protection certificates" (cf.
Regulation <EG> No. 469/2009 of the European Parliament and of the Council of
May 6, 2009 on the supplementary protection certificate for medicinal products, OJ EU No. L 152
of June 16, 2009, p. 1; Regulation <EG> No. 1610/96 of the European Parliament
and the Council of 23 July 1996 on the creation of a supplementary
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7
8th
9
10th
Protection certificate for plant protection products, OJ EC No. L 198 of 8 August 1996, p.
30).
2. From the point of view of the federal government, the EPGÜ is the keystone of one
the reform of the European patent system sought in the 1960s (cf. BT-
Drucks 18/11137, p. 79; historical overview of Augen-stein / Haertel / Kiefer, in:
Fitzner / Lutz / Bodewig, BeckOK PatR, EPGÜ, marg. 9 ff. <15. January 2020>; Jaeger, IIC
2017, p. 254 <255 ff.>).
a) Already after the adoption of the EPC, attempts were made by convention
a uniform patent at the level of the European Economic Community
to create protection titles, among other things with an initiati-
ve the European Commission on the secondary law introduction of a community
patent (cf. proposal for a Council regulation on the
Community patent, COM <2000> 412 final; see. Ann, in: Kraßer / Ann, patent law,
7th edition 2016, § 7 marg. 90 ff .; Adam / Grabinski, in: Benkard, European Patent Transfer
income, 3rd ed. 2019, Before preamble marg. 33 ff.). The proposal saw the
establishment of a judicial chamber (Art. 225a EGV <specialized court within the meaning of Art. 257
TFEU>) for patent disputes, but did not lead to success (see subsidiary
mann, in: Benkard, Patentgesetz, 11th edition, 2015, international section marg. 154).
In parallel, there were attempts to create a uniform patent court bar
both at community level and through a working group of members
States of the European Patent Organization that
States of the EPC (European Patent Litigation Agreement - EPLA) (cf.
Adam / Grabinski, in: Benkard, European Patent Convention, 3rd edition 2019,
Before preamble marg. 36, 39 ff.).
b) In autumn 2007 there were new drafts for an agreement for one
European patent jurisdiction (see Gaster, EuZW 2011, p. 394 <398 f.>; further
Augenstein / Haertel / Kiefer, in: Fitzner / Lutz / Bodewig, BeckOK PatR, EPGÜ, marg. 27
<15. January 2020>). On March 20, 2009, the European Commission recommended that
Council based on the discussions held so far to negotiate them
on the conclusion of an agreement establishing a unified
to authorize tent court systems (see SEK <2009> 330 final). The aim was
insofar as the conclusion of a mixed agreement linked to the EPC
Member States, European Union and third countries through a patent
jurisdiction (see Council document 7928/09 of 23 March 2009, p. 2).
At the same time, the project of a community patent - now pa
of the European Union - followed up (see proposal for a regulation of the
Council on the patent of the European Union, Council document 16113/09 Add. 1 of
November 27, 2009). At the political level, both projects were merged into one
linked "legislative package", collectively as "European
Patent Reform ”(see BTDrucks 18/8827, p. 15) or“ European Patent Package ”(see
Augenstein / Haertel / Kiefer, in: Fitzner / Lutz / Bodewig, BeckOK PatR, EPGÜ, marg. 5
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12th
<15. January 2020>).
c) The draft international convention establishing a court
for European and Community Patents (GEPEUP)
submitted to the European Union (ECJ) for assessment (OJ EU No. C 220
of September 12, 2009, p. 15). In his report dated March 8, 2011, the
Court ruled that the proposed agreement with the European treaties
is not compatible (see ECJ, report of 8 March 2011, report 1/09,
EU: C: 2011: 123, marg. 89). Art. 262 and Art. 344 TFEU are transferable
of jurisdiction on the court to be established, so that the
Creation of a uniform patent jurisdiction also outside of Art. 262
TFEU ​​is possible (see ECJ, loc. Cit., Margin no.61 ff.). The formation of a new judicial
However, the structure fails because of the basic elements of the legal system
and the judicial system of the European Union. Even if the
be located outside the judicial system of the European Union
(see ECJ, loc. cit., para. 71), see the envisaged agreement
that it had to interpret Union law and replace the national courts
of the Member States, thereby removing the possibility of submission
will (see ECJ, loc. cit., para. 72 ff.). It is also not a matter of
lux court comparable joint court of several Member States, the
designed to interpret the Convention establishing it,
and that it is integrated into the judicial system of the member states (see ECJ,
loc. cit., marg. 82). In addition, there is no possibility of a violation of EU law
by the court on the basis of property liability of the member
states or the subject of infringement proceedings (cf.
ECJ, loc. Cit., Para. 82 ff.). In summary, the Court found that
planned convention one outside the institutional and judicial
International court under the Union's exclusive jurisdiction
to decide on a significant number of individual lawsuits in the
Connection with the Community patent and for interpretation and application
of Union law in this area. This would
Member States are responsible for interpreting and applying the Uni-
onsrecht as well as the Court's jurisdiction to which of these courts
to answer questions submitted for a preliminary ruling, and thus the
Falsified responsibilities that the treaties give the Union institutions and the member
assigned to states and which are essential for the protection of the nature of Union law
(see ECJ, loc. cit., para. 89).
d) In response to the Court's opinion, the patent package was
changed so far that contracting states of the EPCC only member states of the
should become a European Union, but not the European Union itself or
other contracting states of the EPC. To ensure the autonomy of Union law
and to enable the Unitary Patent Court to cooperate with
the Court of Justice has included other provisions in the drafts, in particular
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14
15
16
17th
in particular a regulation that expressly refers to a common court
of the Member States act, Art. 1 para. 1 and Art. 2 letter b EPC (cf.
termann, in: Benkard, Patentgesetz, 11th ed. 2015, international part marg. 155).
In the parallel legislative procedure for the unitary patent
due to objections to the language or translation
agreement between Italy and Spain no agreement can be reached. Therefore
the procedure was continued within the framework of enhanced cooperation (cf.
Decision 2011/167 / EU authorizing enhanced cooperation
in the area of ​​the creation of a uniform patent protection, OJ EU No. L 76
of March 22, 2011, p. 53). After a political agreement was reached in late 2012,
Regulation (EU) No. 1257/2012 and Regulation (EU) No. 1260/2012
decided by the European Parliament and Council in December 2012. The euro
The European Parliament called on the States parties to conclude on December 11, 2012
of the international agreement on a Unified Patent Court (cf.
European Parliament resolution of 11 December 2012, 2011 /
2176 <INI>).
e) The Convention on a Unified Patent Court including the
associated statutes were adopted on February 19, 2013 by 25 member states - not all-
of Spain, Poland and Croatia - signed (see Council document 6572 /
13).
Pursuant to Article 89, Paragraph 1, the Convention shall enter into force if it
ratified at least 13 of the 25 contracting states and deposited the instrument of ratification
ben. Ratification of the member states is mandatory (within the meaning of Art.
2 letter b EPCC), in which the year before the year of signature
most European patents. These are Germany, France and the Ver
United Kingdom (see BTDrucks 18/11137, p. 94).
The EPC has currently been ratified by a total of 16 countries (Belgium, Bulgaria,
Denmark, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta,
the Netherlands, Austria, Portugal, Sweden and the United Kingdom; see.
the
listing
at http://www.consilium.europa.eu/de/documents-publicati-
ons / agreements-conventions / agreement /? aid = 2013001 <last accessed on 29
January 2020>).
The Hungarian Constitutional Court declared the Hungarian Consent Act
By decision of June 26, 2018 for being unconstitutional because it is in the contracts
have no basis about the European Union (cf. Hungarian constitutional
court, decision 9/2018 <VII. 9.> from June 26, 2018, official English translation
setting:
https://hunconcourt.hu/uploads/sites/3/2018/07/dec-on-unified-patent-
court.pdf). The integration authorization in Art. E Paragraph 2 and Paragraph 4 Hungarian
Constitution only applies to enhanced cooperation acts,
if they had their basis in the founding contracts; whether this is the case
not covered by the decision-making powers of the Constitutional Court, but rather
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19th
20th
to be clarified by the government as part of the ratification (cf. Hungarian
constitutional court, decision 9/2018, marg. 32). A consent law according to the
general rules of the Constitution on international obligations of Hungary
violates the provisions of the Hungarian constitution on judicial
drafting an exclusive transfer of the application of Hungarian law
the point of entry for certain private law disputes on international
Courts excluding national courts and the proposed constitutional
against judicial review (see Hungarian Constitutional Court,
Decision 9/2018, marg. 49 ff.).
3. Regulation (EU) No. 1257/2012 creates the legal conditions to
a European patent granted by the European Patent Office
to be sent (see BTDrucks 18/8827, p. 11). The “European patent
with uniform effect ”offers uniform in all participating Member States
Protection and has the same effect there (Art. 3 Para. 2 Regulation <EU> No. 1257 /
2012). The basis for this is a European patent granted by the European Patent Office
Patent with the same claims for all participating Member States
and is entered in the register for unitary patent protection (Art. 3
Paragraph 1 Regulation <EU> No. 1257/2012). This is based on Art. 142 para. 1 EPC, where
according to a group of Contracting States to this Convention, which are
Special Conventions ”have determined that European patents for their
areas are uniform, can provide that this applies only to all states
can be issued together. The regulation is called a “special agreement
come ”understood in this sense (Art. 1 para. 2 Regulation <EU> No. 1257 /
2012). After the IX. Part of the EPC can be shared with the European Patent Office
me administrative tasks are delegated, so that in the matter as issuing
Office for European patents with a uniform effect.
The translation necessary for the implementation of the uniform patent protection
Regulation (EU) No. 1260/2012 (see BTDrucks 18 /
8827, p. 11). It is based on the language regulation of the European Patent Office
(see 6th and 15th recitals) with the official languages ​​German, English and
French. Additional translations are generally not required (Art. 3
Paragraph 1 Regulation <EU> No. 1260/2012), in the event of litigation and
for a transitional period, however (Art. 4 and Art. 6 Regulation <EU>
No. 1260/2012). In future, registrations will be made in the official languages ​​of the European
Union (see 10th and 11th recitals) and a “compensation system
tem ”for the reimbursement of translation costs from official languages ​​of the European
Union that are not official languages ​​of the European Patent
are in office (Art. 5 Regulation <EU> No. 1260/2012).
The effectiveness of both regulations depends on the establishment of the uniform
Patent court. According to Art. 18 para. 2 subparagraph. 1 Regulation (EU) No. 1257/2012
in accordance with Art. 7 Para. 2 Regulation (EU) No. 1260/2012, the respective
ordinance on January 1, 2014 or the date of entry into force of the Convention
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22
via a Unified Patent Court, whichever is later
point is.
Both regulations have already been the subject of actions for annulment before
Court of Justice. In addition to competence issues, Spain also had violations of these with them
Rule of law principles and legal protection requirements, in particular
especially against the principles of the unity and autonomy of Union law. The
the court dismissed both actions (see ECJ, judgments of 5 May 2015, Spain v Parla-
ment and advice, C-146/13 and C-147/13, EU: C: 2015: 298 and EU: C: 2015: 299). in the
With regard to Regulation (EU) No. 1257/2012 on the establishment of the patent with
He denied a breach of the rule of law as a unit
by linking the unitary patent to the granting of a patent by the European
patent office, even if this does not provide legal protection through Union courts
couch. Because the granting of European patents is not
contested regulation and the grant procedure not by the
accessory link integrated into Union law (see ECJ, judgment of 5
May 2015, Spain v Parliament and Council, C-146/13, EU: C: 2015: 298, marg. 28 ff.). The
Regardless of the reference to the EPCC for essential questions of the
substantive law are based on Art. 118 (1) TFEU, since this does not
harmonization required. It is not misuse of discretion and also provides
no violation of the prerequisites for delegating competencies
independent agencies or member states (cf. ECJ, loc. cit., paras. 33 ff., 54 ff.,
60 ff.). The regulation also does not infringe the autonomy of Union law.
The Court is in favor of deciding the legality of the EPCC or
its ratification by the Member States by means of an action for annulment
gene not responsible; the link between the regulation and the EPC should not be considered
were pending because the Union legislature is implementing the Member States
Have left measures within the framework of the EPC (cf. ECJ, loc. Cit., Margin no. 89 ff.,
101, 106). In the judgment on Regulation (EU) No. 1260/2012, the Court denied
in addition, discrimination based on the language regime and a
Breach of the principle of legal certainty due to insufficient
settlement in all official languages ​​(see ECJ, judgment of May 5, 2015, Spain / Parla-
ment and advice, C-147/13, EU: C: 2015: 299, marg. 22 ff., 76 ff.).
4. a) The EPCC sees the establishment of a Unified Patent Court as a common
common court of the member states for disputes over european patents and
European patents with uniform effect before (Art. 1 EPC). It should be in everyone
Contracting member state (cf. Art. 2 letters b and c EPC) own legal entities
possess (Art. 4 Para. 1 EPCC). According to Art. 32 Para. 1 EPCC, it should relate
on patents within the meaning of Art. 2 letter g EPC - European patents and
European patents with uniform effect - the exclusive responsibility for
received an extensive catalog of disputes transferred. This includes
in particular lawsuits for patent infringement, disputes over the existence of
Patents and lawsuits against decisions of the European Patent Office
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Exercise of tasks according to Art. 9 Regulation (EU) No. 1257/2012.
The EPCC determines the following in part:
part One
General and institutional provisions
CHAPTER I
General provisions
article 1
Unified patent court
A Unified Patent Court for the settlement of disputes
European patents and European patents
uniform effect.
The Unified Patent Court is a common court of the
Contracting member states and is therefore subject to the same obligations
Union law like any national court of treaty
sponsoring member states.
Article 2
Definitions
For the purposes of this Agreement, the term means
a) “Court” means the Unified Patent Court, which with this transfer
income is built
b) "Member State" means a Member State of the European Union,
c) “Contracting Member State” means a Member State, the Contracting Party
of this convention is
d) "EPC" means the Agreement on the Grant of European
tente of October 5, 1973 with all subsequent changes,
(e) "European patent" means a patent granted under the EPC that
no uniform effect due to Regulation (EU) No. 1257 /
2012 has
f) "European patent with unitary effect" after the
Patent granted on the basis of Regulation (EU) No. 1257 /
2012 has a uniform effect
g) "Patent" means a European patent and / or a European patent
tent with uniform effect,
h) "Supplementary protection certificate" according to Regulation (EC)
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No. 469/2009 ( 1 ) or Regulation (EC) No. 1610/96 ( 2 )
supplementary protection certificate,
(i) "Statute" means the Statute of the Court of Justice attached as Annex I, which
Is part of this agreement,
(j) "Rules of Procedure" means the procedure laid down in accordance with Article 41
Rules of the Court.
( 1 ) Regulation (EC) No. 469/2009 of the European Parliament
and the Council of 6 May 2009 on the supplementary protection certificate
cat for medicinal products (OJ L 152, 16.6.2009, p. 1) with all subsequent
following changes.
( 2 ) Regulation (EC) No 1610/96 of the European Parliament
and the Council of 23 July 1996 on the creation of a supplementary
protection certificate for plant protection products (OJ L 198,
8.8.1996, p. 30) with all subsequent changes.
Article 3
scope
This convention applies
a) for all European patents with uniform effect,
b) for all supplementary protection certificates, which become one by a
Patented product has been granted,
c) without prejudice to Article 83 for all European patents which
at the date of entry into force of this Agreement
have not expired or will be issued after this time
and
d) without prejudice to Article 83 for all European patent applications
that, at the time of entry into force of this Agreement,
pending or submitted after that date
become.
Article 4
Legal status
(1) The court possesses legal
personality and the greatest possible legal and business capacity,
the legal persons according to its legal
is known.
(2) The court is appointed by the President of the Court of Appeal
that is chosen in accordance with the articles of association.
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CHAPTER II
Institutional provisions
Article 6
dish
(1) The court consists of a court of first instance, a
Court of Appeals and a law firm.
(2) The General Court shall accept the
carried out tasks.
Article 8
Composition of the Arbitration Panel of the Court of First Instance
(1) All rulings of the Court of First Instance are multinational
nal composed. Without prejudice to paragraph 5 and the Arti-
kels 33 paragraph 3 letter a they consist of three judges.
(2) Each panel of a local chamber in a contract with
Member State in which before or after the entry into force of this Agreement
on average in three consecutive years
less than fifty patent proceedings have been initiated per calendar year
consists of a legally qualified judge, the state
is a national of the Contracting Member State in whose territory the
local chamber has been established, and two legally
verified
Judges who
not nationals
this
Are a Contracting Member State and are party to it pursuant to Article 18 (3) of
Be assigned case by case from the judge pool.
(3) Notwithstanding paragraph 2, each panel consists of one
Local Chamber in a Contracting Member State in which before or after
the entry into force of this Agreement in three successive
years, on average at least fifty patent proceedings
were initiated per calendar year, consisting of two legally qualified
adorned judges, nationals of the Contracting Member State
in whose area the relevant local chamber was built
and a legally qualified judge who is not a state
is a member of this Contracting Member State and according to him
Article 18 paragraph 3 is allocated from the judge pool. This
third judge works for a long time in the local chamber, where this
ne efficient work of chambers with high workload necessary
is agile.
(4) Each panel of a regional chamber consists of two
legally qualified judges using a regional list
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Judges are selected and nationals of one of the
relevant contracting member states, and a legally qualified
adorned judge who is not a national of either
Is a Contracting Member State and is in accordance with Article 18 paragraph 3
is assigned to the judge pool.
(5) At the request of one of the parties, each panel requests one
Local or regional chamber the president of the court first
Instance to him from the judges pool in accordance with Article 18 paragraph 3
to assign additional technically qualified judge to the over
an appropriate qualification and experience on the
the field of technology. In addition, any panel can
a local or regional chamber after hearing the parties
make such a request on his own initiative if he so requests
holds indicated.
If he is assigned such a technically qualified judge,
so no other technically qualified judge under Article
33 paragraph 3 letter a.
(6) Each panel of the central chamber consists of two legal
qualified judges, the nationals of different
Are contracting member states, and a technically qualified
Judge who is assigned to him from the pool of judges in accordance with Article 18 paragraph 3
is instructed and has the appropriate qualifications and qualifications
experience in the relevant field of technology. Everyone
Arbitration board of the Central Chamber, with complaints under Article 32
Paragraph 1 letter i is concerned, however, consists of three legally
qualified judges who are nationals of different
are member states.
(7) Notwithstanding paragraphs 1 to 6 and in accordance with the
Rules of Procedure, the parties can agree that their legal
dispute by a legally qualified judge as a sole judge
is decided.
(8) Presiding in each panel of the Court of First Instance
leads a legally qualified judge.
Article 9
Court of Appeal
(1) Each panel of the Appeals Court meets in a multi-
national composition of five judges. It consists of three
legally qualified judges who are nationals of different
are contracting member states, and two technically qualified
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Judges who have appropriate qualifications and experience
in the relevant field of technology. The technically
qualified judges will be the arbitrator from the president
of the court of appeal from the judge pool pursuant to Article 18
grasslands.
(2) Notwithstanding paragraph 1, there is an award body with
Actions under Article 32 paragraph 1 letter i deals out of three
legally qualified judges who are nationals of different
are contracting member states.
(3) Presides over each panel of the Court of Appeal
a legally qualified judge.
(4) The appeal body of the Court of Appeal will be in line
formed with the statutes.
(5) The Court of Appeal is based in Luxembourg.
Article 11
Committees
To ensure effective implementation and functional
wise of this convention, an administrative committee,
a Committee on Budgets and an Advisory Committee were set up.
These particularly include those in this Convention and in
tasks provided for in the articles of association.
Article 12
Administrative committee
(1) The management committee consists of one representative each
of the contracting member states together. The European Commission
at the Management Committee meetings as an observer
represented eighth.
(2) Each Contracting Member State has one vote.
(3) The Administrative Committee takes its decisions with three
fourth majority of the contracting member states represented, one
Cast a vote if this Agreement or the Satellite
not something else is intended.
(4) The management committee shall draw up rules of procedure.
(5) The management committee elects a chairman from among its members.
for a term of three years. Reelection is permitted
sig.
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Article 13
Committee on Budgets
(1) The Committee on Budgets is composed of one representative each
Contracting member states together.
(2) Each Contracting Member State has one vote.
Article 14
Advisory committee
(1) The Advisory Committee
a) supports the Administrative Committee in the preparation of the
Appointment of the judges of the court,
b) submit to the Presidium referred to in Article 15 of the Statutes
Proposals on the guidelines for the school referred to in Article 19
framework for judges and judges
(c) submit opinions on the
Requirements for the qualification referred to in Article 48 paragraph 2.
(2) The Advisory Committee includes patent judges and
in the field of patent law and patent litigation
belonging to the legal professions with the highest recognized qualifications
tion. They will be processed in accordance with the procedure
appointed for a term of six years. The
Reappointment is permitted.
(3) The composition of the Advisory Committee must be one
wide range of relevant expertise and the representatives
guarantee of each contracting member state. The members
of the Advisory Committee exercise their duties in
dependency and are not bound by any instructions.
(4) The Advisory Committee shall adopt rules of procedure.
(5) The Advisory Committee elects a chairman from among its members.
for a term of three years. Reelection is permitted
sig.
CHAPTER III
Judge of the court
Article 15
Selection criteria for the appointment of judges
(1) The court consists of both legally qualified as
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also composed of technically qualified judges. The judge
must guarantee the highest professional qualifications and
on proven experience in the field of patent litigation
capabilities.
(2) The legally qualified judges must be those for the appeal
required in a judicial office in a contracting state
Have qualifications.
(3) The technically qualified judges must have a high
school leaving certificate and proven expertise on a
technology. You must also have proven
Knowledge of civil and civil litigation relevant to patent disputes
dispose of driving law.
Article 16
Appointment procedure
(1) The Advisory Committee draws up in accordance with the statutes
a list of the candidates best suited to
to be appointed by the court.
(2) The Management Committee appoints on the basis of this list
by mutual agreement the judges of the court.
(3) The implementing provisions for the appointment of directors
are stipulated in the statutes.
Article 17
Judicial independence and impartiality
(1) The court, its judges and the chancellor enjoy judicial
independence. When performing their official duties, they are
Judges are not bound by any instructions.
(2) Legally qualified judges and technically qualified judges
court judges who are full-time judges are not allowed to
practice paid or unpaid work, unless
the management committee has an exception to this
font approved.
(3) Notwithstanding paragraph 2, the exercise of the judge's
the exercise of another judicial activity on national
level.
(4) The exercise of the position of a technically qualified judge
ters, who is a part-time judge of the court,
does not exclude the exercise of other tasks, provided that no in-
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conflict of interest exists.
(5) In the event of a conflict of interest, the judge in question takes
not participating in the process. The rules for the treatment of in-
Conflicts of interest are set out in the articles of association.
Article 18
Judge pool
(1) A judge pool is established in accordance with the statutes.
(2) The judge pool includes all legally qualified judges
and all technically qualified judges of the Court of First Instance
who are full-time or part-time judges of the court. The
Richterpool belongs to at least one for each area of ​​technology
technically qualified judge with relevant qualifications and
Experience. The technically qualified judges of the judge pool
are also available to the Court of Appeals.
(3) If provided in this Convention or in the Statutes
the judges from the pool of judges are appointed by the President of the
Court of First Instance assigned to the relevant chamber. The
The judges are assigned on the basis of their respective
legal or technical expertise, your language skills
se and their relevant experience. The assignment of judges
ensures that all of the court's rulings of first
work with the same high quality and over the same high
level of legal and technical expertise.
CHAPTER IV
Precedence of Union law as well as liability and responsibility
of the contracting member states
Article 20
Priority and respect for EU law
The Court fully applies Union law and
respects its priority.
Article 21
Request for a preliminary ruling
As a common court of the contracting member states and part of their
of the judicial system, the judge works - like any national
dir - with the Court of Justice of the European Union to guarantee
correct application and uniform interpretation of the
Union law, in particular in accordance with Article 267 TFEU
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together. Decisions of the Court of Justice of the European University
on are binding on the court.
CHAPTER V
Sources of law and substantive law
Article 24
Legal sources
(1) With full respect of Article 20, this supports
Judge its decisions in litigation involving it
called under this Convention
a) Union law including Regulation (EU) No. 1257 /
2012 and Regulation (EU) No. 1260/2012 ( 1 ),
b) this Convention,
c) the EPC,
(d) other international agreements applicable to patents; and
are binding for all Contracting Member States, and
e) national law.
( 1 ) Council Regulation (EU) No 1260/2012 of December 17
2012 on the implementation of enhanced cooperation in
rich in creating patent protection with a view
to the applicable translation rules (OJ L 361,
December 31, 2012, p. 89) with all subsequent changes.
Article 25
Right to prohibit the direct use of the invention
A patent grants its holder the right to prohibit third parties
without his consent
a) to manufacture a product which is the subject of the patent,
offer, place on the market, use or at the
introduce or possess named purposes;
b) to apply a procedure which is the subject of the patent,
or, if the third party knows or should have known that the requests
application of the procedure without the consent of the patent owner
is prohibited for use in the territory of the contract member
offer countries where this patent is effective;
c) a process that is the subject of the patent
to offer, to place on the market manufactured product
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use or for the purposes mentioned or to
have.
Article 26
Right to prohibit the indirect use of the invention
(1) A patent grants its holder the right to protect third parties
offer without his consent in the territory of the contract
Member States where this patent is effective other than
Authorized persons using the patented invention
which relate to an essential element of the invention, for
To offer or deliver use of the invention in this field
far, if the third party knows or should have known that this
Means are suitable and intended for the use of the inventions
to be used.
(2) Paragraph 1 does not apply if the funds are general
commercially available products, unless the
Third parties deliberately induce the deliverer in a manner pursuant to Article 25
forbidden to act.
(3) Persons referred to in Article 27 letters a to e
Take action are not considered to be used to use the inventions
authorized persons within the meaning of paragraph 1.
Article 27
Limitations on the effects of the patent
The rights from a patent do not extend to
a) Acts that occur in the private sphere for non-commercial purposes
be made;
b) acts for experimental purposes related to the subject
of the patented invention;
c) the use of biological material for the purpose of breeding
development, discovery or development of other plant varieties;
d) permitted acts under Article 13 (6) of the Directive
2001/82 / EC ( 1 ) or Article 10 (6) of Directive 2001/83 /
EG ( 2 ), with regard to all patents that the product
capture one of these guidelines;
e) the immediate individual preparation of pharmaceuticals in pharmacy
due to medical prescription and actions that the
relate to medicinal products prepared in this way;
f) the use of the subject of the patented invention
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On board ships from those countries of the International Union
to protect industrial property (Paris Association) or
Members of the World Trade Organization who are not members of the
belong to member states in which the patent has effect, in
Hull, in the machines, in the rigging, on the equipment and
other accessories if the ships are temporary or random
enter the waters of a Contracting Member State in which the
Patent has effect, provided this subject is there
used exclusively for the needs of the ship;
g) the use of the subject of the patented invention in
construction or for the operation of aircraft or land vehicles
or other means of transport from those countries of the international
National Association for the Protection of Industrial Property (Pari
Association) or members of the World Trade Organization who are not
belong to the contracting member states in which the patent
kung, or the accessories of such aircraft or land vehicles,
if it temporarily or accidentally enters the territory of a
Contracting member state in which the patent has effect;
h) those referred to in Article 27 of the Agreement of December 7, 1944
acts referred to as international civil aviation ( 1 ) if the
acts an aircraft of a Contracting State of that agreement
mens, which does not belong to the contracting member states, in
to whom the patent has effect;
(i) the use of his crop by a farmer for
nerative or vegetative propagation by himself in his own
Operation, provided the plant propagation material is
or with his approval for agricultural cultivation
sold to the farmer or otherwise marketed
was brought. The extent and modalities of this use
correspond to those of Article 14 of Regulation (EC)
No. 2100/94 ( 2 );
(j) the use of protected farm animals
by a farmer for agricultural purposes, provided that
Breeding animals or other animal reproductive material from the
sold to the farmer or with his consent
or otherwise placed on the market. This use
also extends to the provision of agricultural
Chen farm animals or other animal reproductive material
to carry out the agricultural activity of the farmer,
but not on its sale with the aim or in the context of a
Propagation for profit;
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k) acts and use of information in accordance with
Articles 5 and 6 of Directive 2009/24 / EC ( 3 ), in particular
the provisions regarding decompilation and interoperability,
are allowed and
(l) Acts that take effect in accordance with Article 10 of Directive 98/44 / EC ( 4 )
are allowed.
( 1 ) Directive 2001/82 / EC of the European Parliament and of the
Council of 6 November 2001 establishing a Community
codes for veterinary medicinal products (OJ L 311, 28.11.2001, p. 1)
all subsequent changes.
( 2 ) Directive 2001/83 / EC of the European Parliament and of the
Council of 6 November 2001 establishing a Community
Codes for medicinal products for human use (OJ L 311, 28.11.2001, p. 67)
with all subsequent changes.
( 1 ) International Civil Aviation Organization (ICAO), “Agreement
von Chicago ”, document 7300/9 (9th edition, 2006).
( 2 ) Council Regulation (EC) No 2100/94 of 27 July 1994 on
Community plant variety protection (OJ L 227, 1.9.1994, p.
1) with all subsequent changes.
( 3 ) Directive 2009/24 / EC of the European Parliament and the
Council of April 23, 2009 on the legal protection of computer pro
gram (OJ L 111, 5.5.2009, p. 16) with all subsequent ones
Changes.
( 4 ) Directive 98/44 / EC of the European Parliament and the Ra-
tes of July 6, 1998 on the legal protection of biotechnological
Inventions (OJ L 213, 30.7.1998, p. 13) with all subsequent
the changes.
Article 28
Right of the previous user of the invention
Anyone who has a right of prior use in a contracting member state or
would have acquired personal ownership of an invention,
if a national patent had been granted for this invention,
has the same rights in this Contracting State also in
train for a patent that relates to this invention.
Article 30
Effect of supplementary protection certificates
The supplementary protection certificate grants the same rights as
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the patent and is subject to the same restrictions and restrictions
obligations.
CHAPTER VI
International and other jurisdiction of the court
Article 31
International jurisdiction
The international jurisdiction of the court is in line with
Regulation (EU) No. 1215/2012 or, if applicable
Basis of the Convention on Jurisdiction
and the recognition and enforcement of decisions in ci-
vil and commercial matters (Lugano Convention) ( 5 ).
( 5 ) Convention on Jurisdiction and Income
Detection and enforcement of decisions in civil and commercial
delssachen, decided on October 30, 2007 in Lugano, with everyone
subsequent changes.
Article 32
Jurisdiction of the court
(1) The court has exclusive jurisdiction for
a) Lawsuits for actual or impending violation of par-
and additional protection certificates and related lawsuits
responses, including license counterclaims,
(b) claims for non-infringement of patents and
supplementary protection certificates,
c) Actions for provisional measures and security
measures and injunctions,
d) Actions for the annulment of patents and annulment
the supplementary protection certificates,
e) Counterclaims for the annulment of patents and nullity
clarification of the supplementary protection certificates,
f) Actions for damages or compensation based on
the provisional protection that a published application of a
granted European patents,
g) Lawsuits related to the use of an invention
before granting a patent or with a right of prior use,
h) Actions for payment of a license fee based on Article
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8 of Regulation (EU) No. 1257/2012 and
i) Actions against decisions made by the European Patent Office
in the exercise of the requirements set out in Article 9 of Regulation (EU) No. 1257/2012
mentioned tasks.
(2) For lawsuits related to patents and supplementary
Protection certificates that are not the exclusive responsibility of the
Judge fall, the national courts of contract
Member States responsible.
Article 34
Spatial scope of decisions
The decisions of the court apply in the case of a European
patents for the territory of those contract members
countries for which the European patent is effective.
Part III
Organization and procedural rules
CHAPTER I
General provisions
Article 40
statute
(1) In the statutes the details of the organization and
governed the functioning of the court.
(2) The Statute is annexed to this Convention.
The statutes can be on the proposal of the court or on the proposal
of a Contracting Member State after consulting the court
a decision of the management committee to be changed.
However, these changes may not conflict with this
Convention stand still lead to its amendment.
(3) The statute ensures that the functioning of the court
is organized as efficiently and cost-effectively as possible, and
that fair access to justice is ensured.
Article 41
Rules of Procedure
(1) The rules of procedure regulate the details of the procedures
in court. It stands with this convention and the
in harmony.
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(2) The rules of procedure shall be drawn up after thorough consultation
of stakeholders accepted by the management committee. Before that
a European Commission opinion on the
of the rules of procedure with Union law.
The rules of procedure may be proposed by the court and after
Consultation of the European Commission by decision
of the management committee. These changes
however, may not conflict with this Agreement
or the articles of association are still to change this convention
or the statutes.
(3) The rules of procedure ensure that the decisions
the highest quality standards and that
the procedures are carried out as efficiently and cost-effectively as possible
leads. It ensures a fair balance between the
legitimate interests of all parties. It provides the judges
the necessary discretion without predictability
the procedure for the parties.
Article 42
Proportionality and fairness
(1) The court conducts the proceedings on one of their meaning and
Complexity appropriate way.
(2) The court warrants that the provisions of this Convention
and the regulations, procedures and provisions provided for in the articles of association
Remedies are applied in a fair and balanced manner
and not distort competition.
Article 43
Case processing
The court actively conducts the pending proceedings
Provision of the rules of procedure without the right of the parties
affect the subject and the support of their presentation
Determine evidence of their litigation.
Article 45
Negotiations
The negotiations are public unless the court
closes them, if necessary, in the interest of one of the parties or
other person concerned or in the general interest of the judiciary or
public order to the exclusion of the public
ren.
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CHAPTER III
Proceedings before the court
Article 52 ()
Written procedure, intermediate procedure
and oral procedure
(1) The procedure before the court includes according to the
Rules of procedure a written procedure, an intermediate procedure
and an oral procedure. All processes are based on flexible
ble and balanced manner.
(2) As part of the
the intermediate proceedings may be subject to and subject to
mandate of the entire body of the arbitration body as a report
Referees act as judges to convene an interim hearing.
Together with the parties, this judge examines in particular the
Possibility of comparison, also by means of mediation, and /
or arbitration involving the services
of the center referred to in Article 35.
(3) As part of the oral procedure, the parties receive
Opportunity to properly state their arguments.
With the consent of the parties, the court may
decide hearing.
Article 53
Evidence
(1) The proceedings before the court include the following in particular
Evidence allowed:
a) hearing the parties;
b) obtaining information;
c) submission of certificates;
d) hearing of witnesses;
e) expert opinions;
f) taking the appearance;
g) comparative tests or trials;
h) Submission of a written affidavit.
(2) The rules of procedure regulate the procedure for implementation
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the taking of evidence. The questioning of witnesses and experts
permanent is under the supervision of the court and limited
on the necessary measure.
Article 54
Burden of proof
The burden of proof for facts is without prejudice to Article 24
Paragraphs 2 and 3 the party that relies on these facts.
Article 55
Reversal of the burden of proof
(1) Is the subject of a patent a manufacturing process
of a new product, without prejudice to Article 24
sentences 2 and 3 until proven otherwise, each identical without
Approval of the patent holder as manufactured according to
manufactured using the patented process.
(2) The principle of paragraph 1 also applies if with significant
Probability of the identical product according to the patented
Process was established and the patent proprietor, despite
measured efforts has not succeeded, actually for such
establish an identical product to the process used.
(3) In proving the contrary, the proven
legitimate interests of the defendant in safeguarding its product
tion and business secrets taken into account.
CHAPTER IV
Powers of the court
Article 56
General powers of the court
(1) The General Court may review the provisions of this Convention
Arrange measures, procedures and remedial measures and
orders in accordance with the rules of procedure of
make dependent.
(2) The court shall take due account of the interests of the parties.
and grants the parties legal
hearing unless this is with effective enforcement
the arrangement is not compatible.
Article 60
Arrangement of the preservation of evidence and the inspection of clearance
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options
(1) At the request of the applicant, all reasonably
Evidence available to support the claim that
the patent has been infringed or is in danger of being infringed,
the court itself can initiate proceedings before
quick and effective interim measures to secure
Securing legally relevant evidence regarding the
order the main violation, provided that the protection of confidential in-
formations is guaranteed.
(2) These measures can include the detailed description
or without retention of samples or the real hardware
the infringing products and, if applicable, the
use the manufacture and / or distribution of these products
materials and equipment and the associated documents
grasp.
(3) The court itself can initiate proceedings in the
Thing at the request of the applicant, the evidence
establishment of the claim that the patent has been infringed or
has threatened to be injured, has submitted the inspection of
arrange things. An inspection of premises is carried out by
one ordered by the court in accordance with the Rules of Procedure
Person made.
(4) The applicant is not in the inspection of the premises
present; however, he may be an independent professional
represented by the court order by name
name is.
(5) If necessary, the measures are taken without consulting the other
the other party, especially if a delay
the patent holder is likely to receive a
irreparable damage would occur, or if the
Evidence is in danger of being destroyed.
(6) Are measures to preserve evidence or inspect
Premises arranged without hearing the other party, so
the affected parties are immediately, but at the latest
indirectly after completion of the measures
put. At the request of the parties concerned, an examination will take place
includes the right to comment, with the aim of
within a reasonable time after notification of the measures
to decide whether it is modified, canceled or confirmed
Need to become.
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(7) The measures to preserve evidence can depend on this
be made that the applicant receives a reasonable deposit
provides or provides appropriate security in accordance with paragraph
9 compensation for the defendant for the
ensure damage.
(8) The court shall ensure that the measures to provide evidence
at the request of the defendant without prejudice to any
Claims for compensation canceled or otherwise
be overridden if the applicant is not within
a deadline - not exceeding 31 calendar days or 20 working days -
the longer of the two periods applies - in the case of the
directs an action that leads to a substantive decision.
(9) Are measures to preserve evidence canceled or
are they due to an act or omission of the application
void, or it is subsequently determined that no sales
last or impending violation of the patent, it can
Order the court at the request of the defendant that the
provide the defendant with a reasonable replacement for a
damage caused by these measures.
Article 69
Litigation costs
(1) The cost of the litigation and other costs of the obsi-
As a rule, the party to the extent that they are reasonable and reasonable
are measured, up to a
ten lower limit borne by the losing party, if
This is not due to equity reasons.
(2) A party wins only partially or lies extraordinary
Circumstances before, the court can order that the costs after
Be distributed fairly or the parties bear their own costs.
(3) A party that the court or another party
has incurred costs, it should bear these.
(4) At the defendant 's request, the court may order that the
Applicant for litigation and other costs
of the defendant, which the applicant may have to bear,
has to provide adequate security, especially in the
cases referred to in Articles 59 to 62.
CHAPTER VI
decisions
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Article 82
Enforcement of decisions and orders
(1) The decisions and orders of the court are to be
len contracting states enforceable. An order for full
Extension of a decision becomes the decision of the court
attached.
(2) If necessary, the enforcement of a decision
be made dependent on security or the like
valuable guarantees are provided, especially in the case of
Orders to provide compensation for damage suffered
len.
(3) Without prejudice to this Agreement and the Articles of Association,
is the enforcement procedure the right of the contract member
State in which enforcement takes place. Decisions of the
judgments are enforced under the same conditions as
Decisions made in the contracting state in which the full
stretching is done.
(4) If a party does not comply with an order from the court,
in this way, she can be fined to the court
become. The individual penalty payment must be proportionate
stand on the importance of the order to be enforced and
allows the right of the party, damages or security
request, untouched.
Part IV
Transitional provisions
Article 83
Transitional arrangement
(1) During a transitional period of seven years after the
With the entry into force of this Agreement,
application for or annulment of a European patent or
Actions for violation or for the annulment of a supplementary
protection certificate, which is based on a European
protected product has been issued, continues with na-
national courts or other competent national authorities
be collected.
(2) Lawsuits brought before a national at the end of the transition period
Court are pending through the end of the transition period
not touched.
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(3) If no action has been brought before the court, it can
a proprietor or applicant for a European patent
during the transition period according to paragraph 1 and, if applicable, paragraph 5
granted or requested, and a holder of a supplementary
the protection certificate, which is based on a European patent
protected product has been granted, the exclusive
exclude jurisdiction of the court. For this purpose he has to
the law firm no later than one month before the end of the transition period
a notification of the use of this exception rule
send lung. The use of the exception rule
with the entry of the corresponding notification in the
Register effective.
(4) If no action has been brought before a national court
has been the holder or applicant of European patents
or holders of supplementary protection certificates, which become one through a
European patent protected product have been granted which
availed of the exemption under paragraph 3
ben to withdraw from this exemption at any time. In the-
In this case, you inform the law firm. The waiver
the use of the exemption is registered with the
of the corresponding notification in the register.
(5) Five years after the entry into force of this Agreement
the management committee conducts an in - depth consultation of the
Patent system users and a survey conducted to the number
European patents and supplementary protection certificates,
to a product protected by a European patent
have been issued, because of which complaints continue to be made under paragraph 1
due to violation or for annulment at the national
judges, the reasons for this and the associated
to determine the effects. Based on this consultation
and an opinion of the court, the administrative
decide to increase the transition period by up to seven years
extend.
Part V
Final provisions
Article 84
Signing, ratification and accession
(1) For all Member States, this Agreement
bruar 2013 for signature.
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(2) This Convention is subject to ratification as required
the respective constitutional requirements of the member
states. The instruments of ratification are sent to the General Secretariat
of the Council of the European Union (hereinafter referred to as "depositary")
submits.
(3) Any Member State that signs this Agreement
has notified the European Commission of its ratification of the
Convention at the time of depositing its ratifications
Certificate according to Article 18 paragraph 3 of Regulation (EU)
No. 1257/2012.
(4) This Agreement is open to accession by all Member States
open. The certificates of accession are deposited with the depositary.
Article 85
Duties of the depositary
(1) The depositary shall prepare certified copies of this Agreement
come and send it to the governments of all member states,
who sign or accede to the Convention.
2. The depositary shall notify the governments of the Member States that
who sign or accede to the Convention,
a) each signature;
b) the deposit of any instrument of ratification or accession;
c) the date of entry into force of this Agreement.
(3) The Depositary shall leave this Agreement with the Secretariat
of the United Nations register.
Article 86
Duration of the Convention
This Agreement is concluded for an unlimited period.
Article 87
Revision of the Convention
(1) Either seven years after the entry into force of this Agreement
or as soon as 2000 infringement proceedings
have been divorced - whichever comes later - and if so
subsequently required at regular intervals, the
management committee an in - depth consultation of users of the
Patent system, which is dedicated to the following aspects:
wise, efficient and cost-effective as well as trust
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the users of the patent system in the quality of the decisions
against the court. Based on this consultation and a
the administrative committee may decide
to revise this convention to work
of the court to improve.
2. The Administrative Committee may amend this Agreement.
to deal with an international contract in the field of
To bring patent law or with the Union law in line.
(3) A decision of the Ver made on the basis of paragraphs 1 and 2
management committee is not effective if a contract member
Member State within twelve months from the date of the decision
based on its relevant national decision-making
driving declares that he will not be bound by the decision
want. In this case, a review conference of the contract
Member States convened.
Article 88
Languages ​​of the Convention
(1) This Convention is in the original in German, closely
lisch and French language, each wording
is equally binding.
(2) The official languages ​​other than those referred to in paragraph 1
wording of this Convention
coming are regarded as official versions if they are from
Management committee have been approved. In the event of deviations between
The different wording are those mentioned in paragraph 1.
decisive wording.
Article 89
Come into effect
(1) This Agreement shall enter into force on 1 January 2014 or
on the first day of the fourth month after depositing the thirteen
instrument of ratification or accession in accordance with Article 84, including
the deposit by the three Member States in which
Year before the year of signature of the Convention
most applicable European patents existed, or on the first day
the fourth month after the entry into force of the changes in the
Regulation (EU) No. 1215/2012, which regulates the relationship between those
Regulations and this Convention, depending on which
The latest time is.
(2) Any ratification or accession after its entry into force
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24th
25th
26
27
28
29
Convention is concluded on the first day of the fourth month after
the instrument of ratification or accession is effective.
b) The statute of the Unified Patent Court is in accordance with Art. 2 letter i EPC
Part of the agreement and this according to Art. 40 para. 2 sentence 1 EPCC
attached as an attachment. In particular, it contains rules on appointment and
Legal status of the judges and via the Presidium.
5. a) On June 20, 2016, the Federal Government led the ratification process to
EPC and submitted to the Bundestag the “draft law on the
Convention of February 19, 2013 on a Unified Patent Court ”(cf. BT-
Drucks 18/8826) as well as the “Draft Law on the Adaptation of Patent Law
regulations due to the European patent reform ”(see BTDrucks 18 /
8827). The Federal Council previously considered both draft laws to be particularly urgent
according to Art. 76 Para. 2 Sentence 4 GG (cf. BRDrucks 280/16 and 282/16).
b) The draft law on the challenged contract law was on December 9
2016 - as the complainant submits, in response to his advice that
due to the transfer of sovereign rights, the treatment of the submission as
particularly urgent in accordance with Art. 76 sec. 2 sentence 5 GG is not permitted - again the
Federal Council forwarded (see BRDrucks 751/16). The letter from the Federal Chancellery
The newly introduced draft now contained the note “Here
transfer sovereign rights under Article 23 paragraph 1 sentence 2 of the Basic Law ”.
The Bundestag adopted the draft approval act (BTDrucks 18/11137)
on March 10, 2017 at third reading unanimously (see PlenProt of the 221st meeting of the
18th parliamentary term of March 9, 2017, p. 22262). Were present as the complaint
defuhrer with reference to a video recording without contradiction, for example
35 MPs. After the corresponding video file including the
President-in-Office and the Secretary identify up to 38 MPs
(see the video file available from the Bundestag media library at
http://www.bundestag.de/mediathekoverlay?videoid=7083109&mod=mod442356
<last accessed on January 29, 2020>). A determination of quorum
within the meaning of Section 45 (2) GO-BT, there was no determination of the
Presidents of the Bundestag that the approval act is based on a qualified majority
was closed (§ 48 Paragraph 3 GO-BT).
The Federal Council unanimously approved the law at its meeting on March 31, 2017
to (see BRDrucks 202/17; minutes of the 956th meeting of the Federal Council on March 31
2017, p. 174).
c) The “Draft Law on the Convention of February 19, 2013
on a Unified Patent Court ”(see BTDrucks 18/11137, p. 7) contains the following
Regulations:
article 1
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30th
31
(1) In Brussels on February 19, 2013 by the Federal Republic
Germany signed Convention on a Unified
patent court and in Luxembourg on October 1, 2015
signed protocol to the Convention on a Unified
The patent court regarding the provisional application is granted
voted. The Convention and the Protocol will be
published.
(2) The Federal Government is obliged to change the over-
income by decision of the management committee
Article 87 paragraph 1 of the Convention referred to in Article 87 paragraph 3
contradict the Convention, unless it
previously authorized by law to approve the change
has been.
Article 2
The amendments to the Convention by decision of the
management committee under Article 87 paragraph 2 of the Convention
mens are from the Federal Ministry of Justice and for consumer
to make protection known in the Federal Law Gazette.
Article 3
(1) This law comes into force on the day after the announcement.
(2) The date on which the Convention, in accordance with Article 89
Paragraph 1 and the protocol according to its Article 3 for the federal
republic of Germany come into force is described in the Federal Law Gazette
knows to give.
The text of the Convention and its annexes, a declaration of the “contractual
closing Member States to prepare to start operating
of the Unified Patent Court ”and a protocol regarding the provisional applications
are attached to the law as attachments. The in Art. 1 Para. 1 EPGÜ-AufentG in
The protocol referred to sees the provisional application predominantly institutional
neller and organizational regulations of the EPGÜ and the statutes (hereinafter:
EPG statute), which means the establishment of the Unified Patent Court before
the entry into force of the Convention and its ability to work
the date of entry into force should be secured (see BTDrucks 18/11137, p. 1, 83
f.).
6. In March 2013, the contracting member states prepared in preparation for the
taking up the work of the Unified Patent Court (BTDrucks 18/11137, p. 70 f.)
a "Preparatory Committee", which is part of the provisional application
of the EPCC the work necessary for the establishment of the Unified Patent Court
and prepare decisions (see daughter, in: Benkard, patent law
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set, 11th edition 2015, international section, marg. 187). These included, among others
the drafting of the procedural, legal, arbitration and mediation regulations that
Rules of procedure of the committees, rules of representation for patent attorneys
Staff regulations and the calls for appointments to judges and
the coordination of the construction of the chambers in the contracting member states. This
Work is done.
The "Preparatory Committee" drew up a draft for the future procedure
rensordnung, which has been in a “final” (18th) version since July 15, 2015,
which has been changed several times, most recently on March 15, 2017 (see draft
the Rules of Procedure of March 15, 2017, https://www.unified-patent-court.org/do-
documents <last accessed on January 29, 2020>). It should already be
regular application of the EPCC to be decided by the management committee
the bodies responsible for judge selection should also be filled,
so that the Unified Patent Court on the effective date of the Convention
mens will be able to work (see BTDrucks 18/11137, p. 94 ff.). The preparatory
Committee has also drafted decisions of the Management Committee in
train on court fees and reimbursable costs (see draft of
February 25th
2016,
https://www.unified-patent-court.org/sites/default/files/
agreed_and_final_r370_subject_to_legal_scrubbing_to_secretariat.pdf <last ab-
called on January 29, 2020>) as well as regarding the maximum amounts of cost
conference (see draft from June 16, 2016, https://www.unified-patent-court.org/sites/
default / files / recoverable_costs_2016.06.pdf <last accessed on January 29
2020>) created.
7. On June 29, 2016, the contracting member states also issued a “Proto-
koll on the privileges and immunities of the Unified Patent Court "
draws (see the notification at https://www.unified-patent-court.org/news/protocol-
privileges-and-immunities), which currently contained in Art. 8 EPG statute
Should specify the rules (cf.BTDrucks 18/11238, p. 58, 82 f.).
The Bundestag passed the Consent Act on this protocol on April 27
2017 (see PlenProt of the 231st session of the 18th parliamentary term on April 27, 2017, p.
23229 f.).
II.
With his constitutional complaint of March 31, 2017, the complainant complained
the violation of his right equivalent to fundamental rights under Article 38 paragraph 1 sentence 1 in
binding with Article 20.1 and Article 2 in conjunction with Article 79.3 of the Basic Law through the
Consent Act to the EPCC. He also considers the EPCC to be contrary to EU law
and encourages a preliminary ruling from the Court of Justice under Article 267
TFEU.
1. The constitutional complaint was admissible.
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a) The constitutional complaint is directed against the law on the convention
of February 19, 2013 on a Unified Patent Court and is admissible; the
Legislative procedure for the consent law is except for and
Announcement completed by the Federal President.
b) He was also authorized to appeal. Art. 38 para. 1 sentence 1, Art. 20 para. 1 and para. 2
in conjunction with Article 79.3 of the Basic Law gave citizens a right to
democratic self-determination, which allows him to oppose a substantial one
To put a stop to the reduction of the power of the Bundestag as well
against sufficiently relevant exceedances of competence by organs of the Euro
European Union. International conventions that are a sovereign transfer
Powers would provide, the Federal Constitutional Court had a material
subject to legal control, the limits for the transfer of ho
rights through the constitutional identity of the Basic Law (Art. 23 para. 1 sentence
3 in conjunction with Art. 79 Para. 3 GG) and through the in-
integration program would be marked (Article 23.1 sentence 2 of the Basic Law). The approval
law could therefore give an order to apply supranational law
issue only in accordance with the constitution. This concerns the preservation of the
Human dignity core of fundamental rights as well as those laid down in Art. 20 GG
Principles. The rule of law with its core elements such as
the guarantee of effective legal protection by independent courts, the
currency of legal hearing or the binding law of administration and legal
speech belongs to this constitutional identity. In particular, the citizen
no claim that the transfer of sovereign rights only in the
Form provided for by the Basic Law.
With the constitutional requirements for the transfer of sovereign
a right of the citizen corresponds to the state organs that
Preserve and protect the integrity of state authority and the impairment of
Constitutional identity or the unchangeable core of the constitution
prevent by transferring sovereign rights. To that extent
Transfer of sovereign rights to the European Union or other supranational
nal institutions the right under Art. 38 Para. 1 Clause 1, Art. 20 Para. 1 and Para. 2 in
Liaison with Article 79.3 of the Basic Law is affected.
As a result of their responsibility to integrate, the constitutional organs are obliged to
in the transfer of sovereign rights for compliance with the requirements of Art. 23
GG to take care.
c) This case law must also apply to the EPCC, since
this also in the opinion of the federal government on the affairs of the euro
belong to the European Union. The EPCC is not a contract within the meaning of Art. 48 TEU
and the Unitary Patent Court is formally not an institution of the European Union,
but a supranational institution with its own legal personality (see Art. 4
Paragraph 1 EPC). However, it is closely linked to the European Union. So far
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be the Federal Constitutional Court in the context of the information obligations under Art. 23
Paragraph 2 sentence 1 of the Basic Law has already decided that on the matters of European
International Union also belonged to international treaties, which are in a supplementary or
special proximity to Union law. Such a close relationship
is also here: The agreement is deliberately within the framework of the European Union
and negotiated as part of the "legal package" on European patent reform
the circle of eligible states was based on EU member states
European Union and the Unitary Patent Court is subject to the Uni-
onsrecht.
2. The constitutional complaint was also justified. The EPGÜ violates the constitution
identity of the Basic Law, since when it is ratified the requirement of a
qualified majority in accordance with Art. 23 para. 1 sentence 3 in conjunction with Art. 79 para. 2
GG was not observed. 23 sec. 1 sentence 3 GG
sovereignty in the context of the European Union
procedural requirement of a two-thirds majority,
rend Article 38.1 sentence 1 GG to the individual citizen to ensure democratic
Possibilities of influence also a claim to compliance with these procedural
convey writings. To respect these requirements is the subject of the integration
responsibility.
a) With the transfer of jurisdiction, there is a transfer
sovereignty. This is constitutionally relevant since it is a contractual one
The basis for the transfer of jurisdiction is not apparent
be; materially it is therefore a matter of a constitutional amendment, which the Bundestag
wise the meeting record was not passed with the required majority
had been.
b) The constitutional identity of the Basic Law is also due to the inadequate
the legal status of the judges. For their selection and appointment
le it as well on a legal basis as for the authorization to carry out
Interventions in fundamental rights through judicial activity. The selection and appointment
The appointment procedure is inadequate since there is a close relationship with those in the adviser
Committee may represent patent practitioners. The Advisory Committee
compile the list of candidates, whereby it is not excluded that members of the
Committee or their law firms as lawyers and patent attorneys
the judges selected by them. The independence of the judges
de also due to the short term of office of only six years and the possibility
the reappointment and the lack of legal protection against interference in their
Position endangered. The complainant sees his explanations through the
Divorce of the Second Senate from March 22, 2018 to temporary judge (cf.
BVerfGE 148, 69 ff.) Confirmed.
c) Article 38 (1) sentence 1 in conjunction with Article 20 (1) and (2) in conjunction
with Article 79.3 of the Basic Law would also be violated by the fact that the Convention
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Interferences with fundamental rights are possible without a sufficiently
che. For example, the rules of procedure will be adopted by the management committee,
Art. 41 EPC as the relevant legal basis is not a parliamentary
participation and no express authorization to undertake
Interferes with fundamental rights by the judges of the Unified Patent Court.
In any event, Article 41 (2) EPCC was too vague. In this respect, it is
ne blanket not permitted according to the case law of the Federal Constitutional Court
authorization. Since the regulation also takes into account the required transformation in
National law was absent, was also the principle of reservation of the law
(Article 20.3 of the Basic Law). The same applies to the inadequate regulation
the maximum reimbursement amounts for representation costs (Art. 69 Para. 1 EPC). The
Regulation was arbitrary, not justified and its extent for those involved not
recognizable.
The complainant is also presently, directly by the contract law
and affected yourself. The self-concern results from his property as
Holder of the right equivalent to fundamental rights under Article 38 (1) sentence 1, Article 20 (1) and
Paragraph 2 in conjunction with Art. 79 Paragraph 3 GG. That the one described above
Will become legally affected when the ratification process is completed
already predictable without further notice. Another implementation or enforcement act
there is no need for it.
3. In a further document dated March 31, 2017, the complainant
on an interim order pursuant to Section 32 BVerfGG, with which
the Federal President should be given the EPGÜ-AufentG until the
divorce of the Federal Constitutional Court in the main
and to announce and not to ratify the EPCC.
4. With regard to the question of conformity with EU law of the EPCC, the
Schwerdführer also made a request for a preliminary ruling to the Court. The
EPGÜ violates EU law and thereby violates constitutional ideas
tity of the Basic Law. Since the principle of loyal cooperation
prohibit Member States from ratifying unlawful agreements
Transfers of sovereignty only within the framework of
come allowed. That according to the case law of the Federal Constitutional
does not have constitutional requirements for national
le laws would not stand in the way, because in the decided cases
dealt with the question of the application or validity of Union law
However, the question must be answered here whether the transfer of ho-
rights through conventions that are contrary to EU law.
The case law of the Court of Justice and the principle of European
legality contrary to the Basic Law.
According to the case law of the Court of Justice, the transfer of legal
International law presupposes that this applies to the application
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of the Convention is limited, does not replace the national courts and with
interact with the Court. The Unified Patent Court fulfills these requirements
tongues, so the EPCC the autonomy of Union law and the system
of legal remedies.
The EPC also violates Art. 3 Para. 2 TFEU, the rule of law
principle (Art. 2 sentence 1 TEU) and the right to effective defense (Art. 47 para.
2, Art. 48 Para. 2 GRCh).
III.
The constitutional complaint and the application for an interim order
the Federal Government, the German Bundestag, the Bundesrat and all
state governments, giving them an opportunity to comment
been put. In addition, the Federal Bar Association, the German
Lawyers' Association, the President of the European Patent Office, the German Association
Intellectual Property and Copyright Law (GRUR eV), the European
Patent Lawyers Association, the European Patent Litigators Association and the
Federal Association of German Industry in accordance with Section 27a BVerfGG
given. The Federal Council, the state governments and the federal
desverband der Deutschen Industrie have the opportunity to comment
made no use.
1. The Federal Government issued a position on 15 December 2017.
taken. It considers the constitutional complaint to be inadmissible (a), or at least it is
unfounded (b).
a) The complainant had not sufficiently substantiated that a
Violation of fundamental rights seems possible. The warranty content of Art. 38
GG could not be violated by the convention. These included the
Protection against too extensive a transfer of sovereignty with regard to the
democratic legitimacy, securing constitutional content of the basic law
zes under the aspect of identity control, the democracy-threatening takeover
budgetary obligations as well as protection against
border handling of already transferred sovereign rights ("ultra vires"). So far
should be applied between those before and after a sovereign transfer
To differentiate standards. Before the transfer, a check can only
refer to whether the Bundestag had tasks of sufficient weight
or unchangeable constitutional content affected by the transfer of sovereignty
would be pregnant; the latter is only relevant with regard to Art. 38 GG if the over-
have sovereign rights.
Impairment of the warranty contents mentioned is not under
from a conceivable point of view. An emptying of the democratic sub-
punching the Bundestag does not threaten, as the areas mentioned in the Lisbon judgment
would not be touched; an independence of those to be achieved by the Convention
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judicial institutions should not be concerned, since it was ensured that changes
not under the Agreement by the Administrative Committee without the consent of
Bundestag took place and the standard-setting powers of the administrative committee
ses thematically defined and limited with regard to the articles of association and the rules of procedure
be.
Furthermore, the constitutional identity would not be determined by that of the complainant
alleged unlawfulness of the agreement by Union law, due to procedural errors in the
legislative process or through an inadequate guarantee to the judge
Impartiality and independence in the area of ​​application of the EPC
last. Irrespective of the fact that the allegation of Union unlawfulness against the
Unified patent court does not apply, ignore the claim that this will
violate the constitutional identity of the Basic Law that respect
Union law itself is not part of the constitutional identity and violations
Union law is not directly criticized with the constitutional complaint
could.
There was also no non-compliance with the qualified majority requirement
Violation of the constitutional identity of the Basic Law, as this affects the identification
of the non-transferable. In principle, a sovereign
transfer of rights could not violate the constitutional identity of the Basic Law
Zen. The case law of the Federal Constitutional Court was not otherwise
remove. Article 79.2 of the Basic Law, as a rule, does not convey objective constitutional law
ne subjective rights, since the substance of the right not to vote by the majorities
a decision in the Bundestag is touched. As far as a violation of the
Constitutional identity of the principle of popular sovereignty
should be taken into account that the individual's claim to demo-
cratic self-determination strictly on the dignity core of the democratic prin
zips is limited, a general claim to a general
Constitutional control of legislative decisions and
only structural changes in the state organization structure
could be checked.
So much for the constitutional complaint as part of the rule of law
judicial impartiality and independence as well as cost and liability
computing regulations of the Unified Patent Court on constitutional identity,
don't follow her either. Again, put the required specific
Not related to democracy. If you leave that of the constitutional complaint
to build a bridge to Art. 38 GG with the help of the rule of law
whose constitutional content is sufficient for the right to appeal,
international agreements by everyone without their own fundamental rights
concern for review. The matter is
then a norm control.
b) The complainant's constitutional objections proved
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also as unfounded. The EPGÜ-AufentG is not an application of Art. 23 para.
1 sentence 3 GG. Sovereignty was granted with him; due to the
visible proximity to EU law, Article 23 GG should also be given priority
turn. However, Article 23.1 sentence 3 GG requires a qualified sovereign
transfer with structural constitutional relevance. According to the reasoning
Article 23 of the Basic Law is a decisive factor, in particular whether it is a preliminary
the weight of the establishment of the European Union
is cash and in so far concerns the business basis of primary law. The process
must present itself as a material constitutional change that no other
Act of approval is bound. That is not the case with the EPGÜ-AufentG. This ha-
be no constitutional-changing quality, since jurisprudence as well as legal
jurisdiction would be delegated, but the jurisdiction
a selective, thematically narrowly defined transfer of sovereign rights
dele, the powers of the management committee to set standards are narrow
and therefore neither in the breadth nor in the quality of the delegated powers
achieved meaning comparable to a change in primary law. Et-
what else does not follow from the attribution of judicial power
the judges in Article 92 GG. This only regulates the domestic case law radio
tion, but not the establishment of courts in an international context. The result
be from the openness of the Basic Law for international cooperation
and in particular from Article 24.3 GG, which Germany's accession to a
even expressly provide for general international arbitration. At
no participation of Germany in existing international law courts
for a long time the idea of ​​a breach of the constitution had arisen.
The regulations on the selection and legal status of judges in the
Furthermore, no violation of the rule of law. They followed established ones
and tried and tested procedures that have been used in other European courts
exist for a long time. A threat to the independence of judges
through the participation of individual lawyers (well-meant: members of the legal
counseling professions) appear in the advisory committee in view of the
the process is not understandable. The professional suitability test follows
the application tried at the European Union Civil Service Tribunal
sentence. The administrative committee remains free to select the candidates.
to keep. Judicial independence is guaranteed, a lifetime
Not necessary for this.
The requirements for submission pursuant to Art. 267 TFEU were not met. Since the
violations of EU law constitutional law criticized by the complainant
The questions of interpretation are not significant, and are irrelevant
a submission is therefore not permitted. In addition, the questions were sufficiently clarified and one
Violation of EU law is not apparent.
2. By written notice of January 22, 2018, the German Bundestag has the procedure
Commented. He holds the constitutional complaint for lack of complaint
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authorization and sufficiently substantiated justification also for inadmissible (a), each
at least for unfounded (b).
a) There is already no substantiated statement of the right to appeal. The
Conclusion of an - assumed - international contract contrary to EU law
ne do not constitute a violation of Article 38.1 sentence 1 of the Basic Law, since Union law and
national constitutional law represented different standards; something on-
this does not result from the principle of friendliness to Union law.
Even if one saw it differently, this was not a violation of the constitutional
identity of the Basic Law. The validity and priority claim of the
Union law cannot be part of the constitutional identity on the one hand and
the extreme limits of EU law in the German constitutional
mark room. This would create an internal collision situation through which
Article 79.3 of the Basic Law, its absolute nature and the complaints based on its violation
lose their factual limitation. In any case, such a reprimand would have been with the
Right to democracy from Article 38.1 sentence 1 GG nothing more to do. A corresponding
Corresponding connection is not plausibly claimed, since every justification for
there is no connection to the breach of the legitimacy context. The in the
Case law developed case groups of "right to democracy" are not
relevant; a further development towards a right to general legal
Liquidity control would limit the boundaries between democratic legitimation and
dissolve the legality and complain about any legal violation via Art. 38 Par. 1 GG
make it high. However, the Senate has always emphasized that the “fundamental right to
Democracy ”not just about a general legality check of political
Processes go. In this respect there is no complete agreement between the
Integration limits from Article 79.3 of the Basic Law and that based on Article 38.3
1 sentence 1 GG compliant area. An expansion of the right to democracy into one
"Fundamental right to preserve identity" is remote, since then there is no connection
more can be produced on the principle of democracy. This connection
also do not result from the jurisprudence of the Senate; a corresponding
Legal training would also improve the balance of violence between the federal constitution
court and the other constitutional organs. Otherwise
there is no need for such an expansion of complaints, since one
possible protection gap can be closed via Art. 2 Para. 1 GG.
The complaint that the quorum required by the EPGÜ-AufentG had been violated was also
allowed. Article 23.1 sentence 2 of the Basic Law applies to the present case,
since sovereign rights are transferred to the Unified Patent Court
and that the EPC had a special proximity to the European Union.
Article 23.1 sentence 3 of the Basic Law applies to the present constellation of the transfer of
However, sovereign rights do not apply to another supranational institution.
The genesis, which is based solely on extensions of the
program without formal changes to the contract - in particular evolution
seln - turn off.
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The application of Article 23.1 sentence 2 GG to international law
conclusions such as the present are based on an understanding of Article 23.2 of the Basic Law
suggests that an international and institutional
European Union separate projects still a matter of the euro
European Union can act within the meaning of Article 23.2 of the Basic Law. That understanding
of paragraph 2 go to a special need for information and participation of the
legislative bodies, is in the open concept of matters
of the European Union and coincides with historical and systematic
arguments. The fact that the application of Art. 23 para.
1 sentence 2 GG as a basis for consent, based on the idea that
between the informed participation of the Bundestag in the run-up to the contract
conclusion and the material basis of the consent law
must exist, i.e. a uniform legal framework for exercising the integration
responsibility of the Bundestag. The same applies to the participation of the
Federal Council. In contrast, Article 23.1 sentence 3 of the Basic Law leads compared to Article 24
Paragraph 1 of the Basic Law, no additional material requirements, but
a considerable deviation from the decision of the constitution maker, sovereign
rights can be transferred by simple law. This alone cannot
half bypassed and the transfer of sovereignty to the requirement
majorities subject to constitutional change because of a specific closeness
to Union law exist. In these cases there would be no additional sovereign rights
of the European Union and its legal basis has not changed.
This is particularly evident from the fact that in Art. 262 TFEU the possibility of
sovereignty transfer to the European Union is already in place, one
however, instead decided to open a patent court on international law
to establish a basis outside the institutional framework of the euro
European Union will stand. Against this background, Article 23 paragraph 1 sentence 3
GG as the more specific regulation on international law in relation to Art. 24 Abs. 1 GG
mergers in close proximity to the European Union
find application. The Federal Constitutional
issued a rejection in the decision on Article 23.2 of the Basic Law (with reference
on BVerfGE 131, 152 <199>).
In any event, the complainant's "right to democracy" was
lack of constitutional majority requirements not violated. Art. 38 para. 1
Sentence 1 GG could not be affected by the fact that the German Bundestag
make a decision within his or her area of ​​responsibility like the EPCC itself.
The question of the required majority also has legitimizing content; the-
However, this refers exclusively to the representative, legally effective legal
timation, not on the binding back of the law to citizens. The
correspond to the case law of the Federal Constitutional Court, which is not just one
general legality control on the basis of Article 38.1 of the Basic Law
closed, but also noted that not asserted in this regard
could be that a certain decision with constitutional amendment
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must be taken. In the judgment on the European Stability Mechanism
- ESM (with reference to BVerfGE 135, 317 <387 f.>) The Senate had determined
that Article 79.2 of the Basic Law in general - also in conjunction with Article 23.1 sentence 3 of the Basic Law
- do not convey subjective rights, since the substance of the right to vote does not derive from the
Majority depend with which the Bundestag makes its decisions. The in the judgment on
The OMT program formulated a right to compliance with the forms of Art. 23 Para. 1
Sentences 2 and 3 GG become inadmissible by the complainant from his context
solved. In this respect, the Senate had sovereign powers transferred in accordance with Art. 79 para. 3
GG protected area and the opening of a competence competence of the Euro
eye on the European Union. Otherwise, the reason for the
complaint about the legal justification requirements.
The complaint that the right to vote is due to the structure of the legal relationships
and violated the appointment of the judges of the Unified Patent Court
sig. An impact on the "right to democracy" due to deficits in the rule of law
of the Unified Patent Court is eliminated from the outset. It is also so far
not a sufficiently substantiated lecture for a specific legitimation
with regard to the legal position of the judges as well as for touching Article 79 paragraph 3
GG available. There is no discussion of the question of which legal
state standards in the transfer of sovereign rights to an international
to be brought to court. Due to the different legal traditions of the
In any case, Member States cannot be expected to have all the rule of law
Requirements that the Basic Law places on judicial power also apply
supranational level would have to be observed. To this extent, the constitution
the necessary differentiation between the usual constitutional complaints
Missing legal requirements and the "core content". Although own
the complaint that there is a legal basis for the selection and appointment of judges
lack a democratic salary. However, the complainant did not state
what level of legitimation the sovereignty of a supranational organization
would have to suffice, nor would he carry out, like democratic legitimation in such
Organization in general. With a view to the Meuse
tricht and the Lisbon judgment of the Federal Constitutional Court, however, required
been. The fact that the legitimacy of the EPGÜ-AufentG is not sufficient in this respect supports
the complainant solely on the certainty requirements according to Art. 80 para.
1 GG, which, however, does not apply to international law contracts.
A dismay in the right equivalent to fundamental rights from Article 38.1 sentence 1 GG
also with regard to the competencies of the management committee
sets. Insofar as the complainant claims a violation of the arbitrary ban
che, there is no substantiated statement.
b) The constitutional complaint is in any case unfounded. With its constitutional
complainant wanted to have access to the judicial
reach the yard, which is not provided for in the applicable law.
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aa) The assertion that a constitutional majority was needed is effective
not because the transfer of sovereign rights in question does not materially
ne constitutional amendment. That any transfer of sovereign rights to the EU
the European Union needed a constitutional majority, was incorrect; on-
otherwise the requirement of a two-thirds majority would be the same in Art. 23 para. 1
Sentence 2 GG can be regulated. The Basic Law had the transfer of
rights are allowed from the outset by a simple law in Article 24.1 of the Basic Law. The
The origin of Article 23.1 sentence 2 and sentence 3 of the Basic Law results in this regard
not a clear picture. However, it shows that automatism has been rejected
be. Constitutional practice also does not assume such a junction.
It should be correctly determined whether - directly or indirectly - a content
amendment to the Basic Law. A contract change or similar
Regulation must then be compared whether it is based on material requirements
of the Basic Law differ, as is the case, for example, with a communitization of the asylum
right according to principles deviating from Article 16a GG, the integration of the
Bundesbank in the European system of central banks or the extension of the
German fundamental rights to citizens of other Member States.
After all, the Bundestag, the Bundesrat and the federal government are all simple
Majority requirement expired; there is also a certain normative
interpretation to.
According to these standards, the EPGÜ-AufentG, even if Art. 23 para. 1 sentence 3
GG applicable, should not be decided by a constitutional majority
have to. The changes in the rule of law brought about by the EPCC
Framework conditions are side effects of every transfer of sovereignty,
that do not justify any change in the content of the Basic Law. Such a result
also not from the transfer of judicial power (with reference to Art.
24 sec. 3 GG). According to the case law of the Federal Constitutional Court
Basic law of such a transfer, as it is already in other cases
follows, is not fundamentally contrary. The Federal Constitutional Court had
shipping courts and the appeal committee of the Moselle Commission as well
approved like the International Criminal Court or the Chamber of Seabed
disputes of the International Court of Justice. In the EUROCONTROL decision
the Federal Constitutional Court even transferred to Belgian courts
approved.
bb) Insofar as the constitutional complaint violates the rule of law
standards, be it also unfounded. A violation of Art. 79 para.
3 GG core content of the rule of law is not available. Independently
of how far the protection of Article 79.3 of the Basic Law extends is that of the rule of law
Partial warranties at most in their core contents and not comprehensively
protects. Therefore, only substantial compromises that could affect the legal status of the
in such a way that they are no longer affected by a rule of law
judiciary can be spoken to a violation of Article 79.3 of the Basic Law
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to lead. However, there could be no question of an intervention of such weight. That
Members of the Advisory Committee before the Unified Patent Court
in any case, do not compromise the impartiality of the
Judge and reach for touching the constitutional identity of the basic law
zes not out. The committee was ultimately not for the selection of judges
responsible and for these it is also not recognizable to whom she assigned her appointment
owe. In the national context, there are moreover comparable ones
Constellations (with reference to Section 7 of the Judges' Election Act).
Art. 17 EPC ensures the independence of the judges in the sense of instructions
freedom and avoiding conflicts of interest. Your order goes on one
Tender back and they enjoy immunity. Possibility of reappointment
are common in an international context, for example at the Court of Justice of the EU
European Union, the International Court of Justice, the International Maritime
Court of Justice and the International Criminal Tribunal for the former Yugoslavia.
The same applies to the impeachment procedure, which is based on concrete facts.
prerequisites, the need for a hearing and procedural requirements
accordingly.
cc) Even the principle of democracy is not covered by the EPCC in its by Art.
79 sec. 3 GG protected core. Democratic legitimation will
Mediated to judges by parliamentary approval of the EPGÜ-AufentG and
through the indirect binding back of those acting in the institutional structure of the EPCC
the German representative.
3. The Federal Bar Association holds the constitutional complaint for lack of
Severe authorization for inadmissible. Article 38.1 of the Basic Law only protects against a sub-
loss of power of constitutional power by a
Delegation of tasks and powers of the Bundestag leading to a discharge
the right to vote. The complainant did not have such an emptying
presented substantiated.
The yardstick for examination is Article 24.1 of the Basic Law. This results from the
history of the EPCC as from its meaning and purpose within the framework of the European
Patent organization. The EPGÜ also meets the requirements of Art. 23 GG,
because it is not a "comparable regulation" within the meaning of Art. 23 para.
1 sentence 3 GG act. It is only a matter of a very narrowly limited transfer of the
Judicial power in a very limited area of ​​law.
The transfer of exclusive jurisdiction to certain patent-disputed
causes no structural shift in the constitutionally guaranteed
constitutional structure. The replacement of the national courts only concerns the previous
“classic” European patents. In addition, one is not yet
allows existing control of the European Patent Office, whereby for the patent
there is an opt-out option. The independence of the judges of the
The necessary patent court is guaranteed to the extent necessary that the
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ne appointment procedure is appropriate, possible conflicts of interest
leaning forward; participation of the Bundestag in the appointment of judges was
not legally required. The rules on terms of office and impeachment
are not objectionable, a possible legal protection gap could be
application of Art. 13 EPC, which applies to disputes between employees of the
European Patent Office and the European Patent Organization
of the Administrative Court of the International Labor Organization (ILO)
de, to be closed. The EPG statutes meet the requirements for the
Integrity of the integration program also with regard to the competencies of the
Board of Directors to change them. The contractual requirements for the procedural
regulation of the Unified Patent Court as well as the regulations on cost
are sufficiently determined. The compatibility of the EPC with Union law
after all, is irrelevant to the constitutionality of the EPGÜ-AufentG.
4. The German Lawyers' Association also considers the constitutional complaint to be too
casual, at least for unfounded. Admittedly, rights equivalent to fundamental rights make it possible
from Article 38.1 sentence 1 in conjunction with Article 20.1 to 3 of the Basic Law
Identity control under the law of Article 79.3 GG, whereby the
Transfer of not only legislative, but also other sovereign rights to those there
guaranteed core contents, in particular measured by the rule of law
can. Nothing is apparent for a violation of these core contents; especially
in particular, it was not necessary that the EPCC be constitutional in every respect
and are consistent with EU law.
The EPCC is an international contract based on
Art. 149a EPC. The regulations establishing a European patent with
uniform effect defined itself as an agreement within the meaning of Art. 142
EPC, whereby the uniform effect has a double legal character on internal
international and at European level. Even if the Court of Justice
Approved construction, this does not change the fact that the international law
character of the agreement under Art. 142 EPC. As an international law
According to the EPCC, there is no closeness to EU law, so there is none
special proximity in the sense of the case law of the Federal Constitutional
court exist.
A violation of the EPGÜ-AufentG against Art. 23 Para. 1 Clause 3 in connection with Art. 79
Paragraph 2 of the Basic Law was not subject to complaint in the context of a constitutional complaint. So far
it is only a sentence of the objective constitutional law. In the Sa-
the EPGÜ-AufentG does not need a constitutional majority because it
in the necessary supplementary or other proximity to Union law
missing. That the preparatory work parallel to the regulations on the unitary patent
have taken place and the entry into force of the EPCC is a prerequisite for the entry into
of these regulations is just as insufficient for this as is the restriction of the partial
participating states to member states of the European Union. This is only
has been a response to the Court 's Opinion 1/09 while the
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Submission obligation of the Unified Patent Court according to Art. 267 TFEU already
result from general Union law. They establish a special proximity relationship
just as little as the application of the protocol on privileges and immunity
in the European Union.
The constitutional complaint was otherwise unsuccessful. Although include the
Identity control all three powers and be at a fundamental surrender of the
Relevant to democracy and / or the rule of law. However, she said
The core area of ​​Article 79.3 of the Basic Law is limited. His dismay was not
visible, since any constitutional and democratic
driving to the appointment and dismissal of the judges of the Unified Patent Court
at least not so difficult that with them a fundamental disclosure of the de-
principle of democracy or the rule of law. The independence of the Rich
ter is guaranteed unconditionally under Art. 17 EPC; the term of office limited to six
Years with the possibility of reappointment in European and international
Area common. The EPC also contained sufficient precautions to ensure
independence, as the Advisory Committee - as interpreted by the German
Association of Lawyers - only take part in the first appointment of a judge (note
on Art. 16 EPC). In the event of reappointment, the majority requirement
that there is no determining influence of individuals on the list of proposals,
did not know who did who voted in their favor, and the final
valid decision remains reserved to the management committee. Through the
Specifying a minimum number of candidates to be named is a
ensured. The lack of a legal remedy against the dismissal of a
Richters is concerned about an infringement of Article 38 (1) in connection with
However, Article 20.1 to 3 of the Basic Law does not yet lie in this.
Whether the EPCC is also compatible with EU law is constitutional
irrelevant. The provisions of the EPCC also bear earlier concerns of the
Court against the participation of third countries, against the lack of EU law
claims for damages and infringement proceedings as well as with regard to the original
lack of a submission option according to Art. 267 TFEU invoice.
5. By document dated December 18, 2017, the European Patent Office had one
Submitted opinion. It considers the constitutional complaint to be inadmissible. Art.
79 sec. 2 GG also form a rule of the
constitutes objective constitutional law and does not justify the right of third parties to lodge a complaint.
An own immediate and current concern by the regulations of the
The appellant did not set out the EPCC.
In any case, the constitutional complaint is unfounded. 23 of the Basic Law applies to the EP
GÜ not applicable and the requirements for the requirement of a qualified
Majority are not fulfilled. EUV and TFEU see the establishment of a uniform
Patent court by intergovernmental agreement of the member states.
Rather, this represents an alternative to the transfer provided for under primary law.
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to specialized specialized courts. That Art. 262 TFEU does not make the transfer
also provide for bundle patents, is irrelevant, since Art. 118 TFEU is also a replacement
the bundle patent by means of uniform EU patents.
The judicial independence according to Art. 97 GG and the by Art. 92 GG
The given judicial organization were not among those covered by Article 20 GG
Principles of the rule of law and could therefore not be considered a violation of
Article 38.1 sentence 1 of the Basic Law can be asserted. In addition, there is no requirement
structural congruence.
Also, there is no threat of undermining the competences of the Bundestag, as the affected
patent litigation, only about 0.045% of all civil proceedings in Germany
matter. In addition, the Federal Republic of Germany was bound by instructions
represent ministerial officials on the Administrative Committee.
6. The German Association for the Protection of Intellectual Property and Copyright
(GRUR eV) has with a brief from 21./27. Commented on December 2017
and noted that the EPC was an essential step on the way to
international harmonization of patent law. It extends the legal
protection related to European patents.
7. The European Patent Lawyers Association, by filing dated November 13th
2017 submitted a statement based on statements to supplement the
Facts regarding the election and re-election of judges, procedural
limited, reimbursement of costs and the language regime.
8. The European Patent Litigators Association filed on December 22
2017 communicated that the question of whether the Unified Patent Court as a common
Court of several Member States compatible with the case law of the Court of Justice
was not to affect the complainant's rights under Article 38.1 sentence 1 of the Basic Law.
Possible deficits in legal protection against decisions of the European
According to the case law of the Court of Justice, tentamts are irrelevant to EU law
and would have no relation to the complainant's fundamental rights. Constitutional state-
Basic requirements regarding the independence of the judges would not
injured. Legal protection of the judges against the dismissal is not excluded-
and can be opened by an analogy to Article 13 (1) EPC. Art. 41
EPC is a sufficient basis for the adoption of the rules of procedure, since
the Convention in Art. 42 ff. already detailed procedural rules
and the rules of procedure only regulate the details. From the basic
does not result in a corresponding integration program being more detailed
Must contain specifications. A transformation of the rules of procedure into
state law is not required. Also covering possible procedural costs
have no reference to Article 38.1 sentence 1 of the Basic Law.
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IV.
The Federal President resigned from permanent state practice on April 3, 2017.
speaking - declared to the Federal Constitutional Court that the EPCÜ
In the main, until the decision of the Federal Constitutional Court
to be issued and not to be ratified (cf.
BVerfGE 123, 267 <304>; on BVerfGE 132, 195 ff. cf. Tailor, in: Burkiczak / Dol-
linger / Schorkopf, BVerfGG, 2015, § 32 marginal no. 268 footnote 478). A decision about
the application for interim relief was therefore not made.
B.
The constitutional complaint is admissible if it violates the complaint.
deführers in his right from Art. 38 para. 1 sentence 1 in conjunction with Art. 20 para. 1
and sec. 2, art. 79 sec. 3 GG by violating the requirement of a qualified
majority for the EPGÜ-AufentG in accordance with Art. 23 Para. 1 Clause 3 in connection with
Article 79.2 of the Basic Law complains (I.). Otherwise it is inadmissible (II.).
I.
Acts of consent to international treaties can be
complaint if the contract contains provisions that directly
intervene in the legal sphere of the individual (1.). The complainant has
ne possible violation of Article 38.1 sentence 1 GG by violation of the
Requirement of a qualified majority according to Art. 23 Para. 1 Clause 3 in connection with
Art. 79 sec. 2 GG substantiated (2.). In this respect, the other admissions
prerequisites fulfilled (3.).
1. a) Acts of consent to international law contracts can be
complaint if the contract contains provisions that
intervene indirectly in the legal sphere of the individual (see BVerfGE 6, 290 <294
f.>; 40, 141 <156>; 84, 90 <113>; 123, 148 <170>). Even if the consent is too
a treaty under international law is generally not divisible because the consent
basically a unit that cannot be separated from the international treaty
forms and both represent a single object of attack (cf.
BVerfGE 103, 332 <345 f.>), This includes an application for legal protection
content limitation of the subject matter of the proceedings with regard to the
the provisions of the Convention that have been taken (cf. BVerfGE 14, 1 <6>;
123, 148 <170, 185>; 142, 234 <245 ff. Marg. 10 ff.>). To this extent,
law on international treaties an exact description of the with the
Constitutional complaint requires attacked regulations.
b) The Act of Consent to an international agreement was
subject to a constitutional complaint, if that
Legislative procedure except for the copy by the Federal President and
the announcement has been completed (cf.BVerfGE 1, 396 <411 ff.>; 24, 33 <53 f.>;
112, 363 <367>; 123, 267 <329>; 132, 195 <234 f. Marg. 92>; 134, 366 <391 f. Marg.
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34>; 142, 123 <177 marg. 91>), because otherwise there would be a risk that German
fulfill international law obligations only in violation of its constitution
could. The constitutional complaint could thus fail to achieve its purpose
Clarification of the constitutional situation to serve legal peace and a
Avoid international and constitutional ties from falling apart (cf.
BVerfGE 24, 33 <53 f.>; 123, 267 <329>). It therefore corresponds to the effective bid
(Basic) legal protection and state practice, already at this time a
to allow for diffractive examination of future regulations. The legislative
However, must drive up to the copy of the contract law by the
Federal President and the announcement must be completed (see BVerfGE 1, 396
<411 ff.>; 24, 33 <53 f.>; 112, 363 <367>; 123, 267 <329>). This stage is in the
reached in the present case.
2. The complainant has a possible violation of Article 38 paragraph 1 sentence 1
GG substantiated by violating the Consent Act.
against the constitutional requirements for an effective transfer of
Sovereign rights (Art. 23 Para. 1 Clause 2 and Clause 3 in conjunction with Art. 79 Para. 2 and Clause 3
GG).
a) Article 38.1 sentence 1 of the Basic Law protects citizens who are entitled to vote
before a transfer of sovereign rights under Article 23.1 of the Basic Law, which
contravenes Article 79.3 in conjunction with Article 23.1 sentence 3 of the Basic Law
content of the principle of popular sovereignty (Art. 20 sec. 1 and sec. 2 GG)
reveals. The Federal Constitutional Court is examining this as part of its identity
le (most recently BVerfG, judgment of the Second Senate of July 30, 2019 - 2 BvR 1685/14
ua -, marg. 120 ff.). Art. 38 para. 1 sentence 1 in conjunction with Art. 20 para. 1 and para. 2
Sentence 1 GG also grants those entitled to vote to the Bundestag and Bundesrat
and the Federal Government have the right to have them exercised their
responsibility for compliance with the requirements laid down in the Consent Act
monitor the integration program and when there are obvious and structurally
significant excesses of competence of organs, institutions and others
Bodies of the European Union to ensure compliance with the limits of the
integration program and its compliance.
The Federal Constitutional Court examines this as part of the ultra-vires control (cf.
most recently BVerfG, judgment of the Second Senate of July 30, 2019 - 2 BvR 1685/14 and others -,
Marg. 140 ff.).
In addition, the protection of fundamental rights equivalent to Art.
38 sec. 1 sentence 1 GG also on compliance with the requirements of Art. 23 sec. 1
GG to an effective transfer of sovereign rights. The warranty area
of Article 38.1 sentence 1 of the Basic Law covers structural changes in the state organization
legal structure, such as that associated with the transfer of sovereign rights to the European
union or other supranational institutions (cf.
BVerfGE 129, 124 <169>; 142, 123 <190 marg. 126>). Competencies that
unlike a constitutional authority,
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change can not be "retrieved" easily. The requirement of
A two-thirds majority in Article 23.1 sentence 3 in conjunction with Article 79.2 of the Basic Law
serves to guarantee a special level of legitimation for
divorces that weaken the substance of the right to vote in the Bundestag and that
democratic guarantees of the Basic Law may last until
withdraw to the border protected by the constitutional identity. Here
should the constitutional material change without direct participation of the people-
integration lawmakers to overcome a substantial hurdle
ben (cf. Hobe, in: Friauf / Höfling, Berlin Commentary on the Basic Law, Art. 23 marg.
49 <September 2011>; Wendel, permeability in European constitutional law,
2011, p. 246; Michael, in: Bonn commentary on the GG, Art. 146 marg. 396, 512 <No-
vember 2013>). Unlike in constitutional amendments, Article 38 paragraph 1 sentence 1
GG always affected in the transfer of sovereign rights. Sovereign rights can
without observing the constitutional requirements for the transfer of competences
not effective, even if there is no amendment to the constitution
are transferred, so that acts linked to such a “transfer” as ul-
tra-vires files are to be viewed.
Against this background, citizens have to ensure their
opportunities for influence in the process of European integration
In addition, there is a right that a transfer of sovereign rights only in the
The Basic Law provides for forms of Art. 23 Para. 1 Clause 2 and Clause 3, Art.
79 sec. 2 GG (see BVerfGE 134, 366 <397 paragraph 53>; 142, 123 <193 paragraph 134>;
146, 216 <251 marg. 50>). In the case of Article 23.1 sentence 2 of the Basic Law, the absence can
of a federal law requiring approval and in the case of Art. 23
Paragraph 1 Sentence 3 GG the lack of a qualified majority according to Article 79 Paragraph 2 GG.
This does not conflict with the fact that the Senate in its judgment on the ESM of March 18
2014 a possible violation of Article 38.1 sentence 1 of the Basic Law with regard to the
negated a formal requirement in the legislative process. The
The case was different to the extent that the ESM Financing Act is not a non-retrievable one
Subject to the transfer of sovereign rights (see BVerfGE 135, 317
<386 marg. 125>). As far as the Senate also the reprimand, Bundestag and
Federal Council would have to take special measures of the ESM such as a capital increase
with a view to the overall budgetary responsibility of the Bundestag
Two-thirds majority decide to have considered inadmissible because Article 79 paragraph 2
GG also in conjunction with Article 23.1 sentence 2 GG a rule of objective
the same applies to constitutional law that does not confer any rights on the voters.
In this respect, too, there is no transfer of sovereign rights. That with an
effective transfer of sovereign rights would have been otherwise, the
express reservation for the ultra vires constellations (see BVerfGE 135, 317
<387 f. Marg. 129>). It would be pointless if it were not to be
outgoing constellation of an ineffective transfer of sovereign rights
that would result in countless Ultra-Vires files.
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b) With his constitutional complaint, the complainant complains that the integrative
constitutional legislator the constitutional requirements for a transfer
so that the sovereign right to the Unified Patent Court was not
hold because the EPGÜ-AufentG contrary to Art. 23 Para. 1 Clause 3 in connection with
Article 79.2 of the Basic Law was not passed with the required two-thirds majority
had been. With this he has a possible violation of Article 38.1 sentence 1 of the Basic Law.
sufficiently substantiated. He problematized in depth and with reference
me on the literature the applicability of Article 23.1 GG to the attacked
Approval Act and the requirements of Art. 23 Para. 1 Sentence
3 GG and provides a link with reference to the jurisprudence of the Senate
to protect the right to vote through the qualified majority requirement. In addition
he conclusively claims that the majority requirements of Article 79 paragraph 2
with Article 23.1 sentence 3 of the Basic Law was not observed in the present case
be.
That the complainant did not deal with all conceivable
23 section 1 sentence 3 of the Basic Law, provides the sufficient
Substantiation out of the question. Since it is directly relevant to that extent
Jurisprudence of the Senate is missing (cf. BVerfGE 129, 124 <171 f.>) And the
opinions represented on the relationship between Article 23.1 sentence 2 and sentence 3 GG
fall into ramifications that are hardly manageable anymore (cf. Wollenschläger,
NVwZ 2012, p. 713 <715>), it meets the substantiation requirements if
the complainant with regard to sentence 3 of the predominant view in
Literature which, in the case of a transfer of sovereign rights,
effect in the domestic legal order every integration law
ell constitutionally changing salary (see e.g. Rathke, in: v. Arnauld / Hufeld,
SK-Lisbon, 2nd edition 2018, § 7 marg. 43 ff .; Hillgruber, in: Schmidt-Bleibtreu / Hofmann /
Henneke, GG, 14th edition 2018, Art. 23 marg. 35). His remarks also go
It is sufficiently clear that the complainant breached the
Case law assignment in Art. 92 GG a significant and structurally significant
me sees shift in the constitutional structure. Regardless of the conviction
In any case, he also bears the
the literature's view that the application of Art. 23
1 sentence 3 GG from an evaluative analysis of the effects on the basic
legal order depends (see e.g. Wollenschläger, in: Dreier, GG, Vol. 2, 3.
Edition 2015, Art. 23 marg. 57).
3. The other admissibility requirements are also fulfilled. The through the EP
Transfer of Sovereign Rights to the Uniform Pa
tentgericht takes effect immediately upon commencing work, without any further
German law enforcement act would be required (see also
BVerfGE 142, 234 <245 f. Marg. 12>). So much for the complainant
asserts a substantiated violation of fundamental rights, he is therefore himself and
currently affected in his right under Article 38.1 sentence 1 of the Basic Law, which by the
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upcoming copy of the EPGÜ-AufentG threatens to be impaired.
The concern is also immediate, because the EPGÜ-AufentG
tag conveyed the right to democratic self-determination after its execution
would reduce without further implementation act (see BVerfGE 1, 97 <101 f.>; 53,
366 <389>; 126, 112 <133>; stRspr).
II.
On the other hand, the constitutional complaint is inadmissible because there is no right to appeal,
insofar as the complainant has a possible violation of his right under Art. 38
Paragraph 1 sentence 1 in conjunction with Art. 20 Paragraphs 1 and 2 in conjunction with Art. 79
Paragraph 3 of the Basic Law derives from this that the EPGÜ-AufentG violates the constitutional identity
violate because the legal status of judges is insufficiently regulated by the rule of law
(1st), interference with fundamental rights by the Unified Patent Court is not sufficient
are legally legitimate (2.) and the EPCC violates Union law (3.).
1. As far as the constitutional complaint complains that the procedure for selection and
Appointment of the judges of the Unified Patent Court and their legal status
If the requirements of the rule of law are insufficient, there is a lack of substantiated
possible violation of the right under Art. 38 Para. 1 Sentence 1 GG (§ 23 Para.
1 sentence 2, § 92 BVerfGG). Is the case law of the Federal Constitution
appellate court, the complainant must deal with this,
to adequately demonstrate the possibility of a fundamental rights violation in his case
(see BVerfGE 99, 84 <87>; 101, 331 <346>; 123, 186 <234>; 130, 76 <110>; 142,
234 <251 marg. 28>; 149, 346 <359 marg. 23>). This also applies to the identity
control according to Article 23.1 sentence 3 in conjunction with Article 79.3 of the Basic Law (on the
Requirements for substantiation cf. also BVerfGE 129, 124 <167 ff.>; 132,
195 <235 marg. 92>). The constitutional complaint does not meet these requirements.
a) Admittedly, the provisions of the EPCC on the appointment and legal
position of the judges at the Unitary Patent Court, including their complaints
Democratic legitimacy which can be directly objected to via Article 38.1 sentence 1 of the Basic Law
(Art. 20 sec. 1 and sec. 2 sentence 1 GG). So much for the complainant
claims that there is no adequately defined legal basis for the
naming the judges as well as a parliamentary participation in order to be supported by the
To legitimize interferences with fundamental rights, this could be done in the
Thing to assert insufficient democratic legitimation
responsible for the exercise of judicial power by the Unified Patent Court
that will.
However, these statements are not sufficient to prevent the possibility of an infringement of the
Principle of democracy according to Art. 20 Para. 1 and Para. 2 in conjunction with Art. 79 Para.
3 GG sufficiently to be presented. In addition to the factual and substantive legitimation of the right
The judges of the Uniform Pa-
from the perspective of the Basic Law on Personal Legitimacy
on. The appointment of judges by the Administrative Committee requires the
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Unanimity, so that the German representative is equal and
outgoing In view of this and in view of the fact that a
Participation of Germany in supranational courts by the Federal Constitutional
has never been called into question before (see BVerfGE 73, 339 <366 ff.>;
149, 346 <364 f. Marg. 36 f .; 366 marg. 41, 43>), it would have been closer
setting with the requirements for the democratic legitimation of legal
tasks in the supranational context and the relevant case law
of the Federal Constitutional Court. The reference to the case law
of the Federal Constitutional Court is obviously exhausted in a simple one
Transfer of certainty requirements developed for the domestic area-
se. The fact that an international contract concluded with other contracting parties
must be acted on, insofar as not the same requirements for certainty
and density of regulations can be set as if they were a law (cf. BVerfGE 77,
170 <231 f.>; 89, 155 <187 f.>), Is not addressed by the constitutional complaint
tized. Nor is there any specific justification for why the
Regulations on the procedure for appointing judges and in particular
agreement of the representatives of the
Member States (Art. 16 Para. 2 EPC) with regard to the binding nature of the judges of the
patent law on law and order (see Art. 24 EPC)
of the level of legitimation.
b) Insofar as the violation of others is based on Article 38.1 sentence 1 of the Basic Law
Principles of state structure, such as the rule of law, are complained about here
the case law of the Federal Constitutional Court requires that the
difficult to establish a connection to the information about Article 38.1 sentence 1 of the Basic Law
manufactures a compliant democratic principle (see BVerfGE 123, 267 <332 f.>; 129,
124 <169, 177>; 132, 195 <238 marg. 104>; 134, 366 <397 marg. 53>; 135, 317 <386
Marg. 125>; 142, 123 <190 marg. 126>; 146, 216 <249 f. Marg. 44 ff.>).
The constitutional complaint does not relate to this requirement. With a view to
the legal status of the judges of the Unified Patent Court is limited
as a result of a conflict with provisions of the - sometimes simple - na-
state law.
2. The constitutional complaint is also inadmissible insofar as the complainant
a violation of his right under Article 38.1 sentence 1 of the Basic Law from the in Articles 41 and
Powers of the Administrative Committee provided for in Art. 69 (1) EPCC
Adoption of rules of procedure of the Unified Patent Court as well as
maximum amounts for reimbursable agency costs with the justification
derives from the fact that the Unitary Patent Court will be affected
legal positions of voters protected in fundamental rights
Germany makes it possible without a sufficiently specific parliamentary
authorization is present.
a) In its judgments on the Maastricht treaties, the Senate
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BVerfGE 89, 155 <187 f.>) And Lisbon (see BVerfGE 123, 267 <351, 353>) Blan-
chain authorizations excluded and in his judgment on the free trade agreement
between the European Union and Canada (CETA) dated October 13, 2016
considered that an undefined structure of the CETA
the principles of the democratic principle as part of the constitutional
identity of the Basic Law could affect (see BVerfGE 143, 65 <95 ff. marginal 59,
65> with reference to BVerfGE 142, 123 <183 f. Marg. 110 f.>). In this respect, Art. 38
Paragraph 1 sentence 1 in conjunction with Article 20 Paragraph 1 and Paragraph 2 of the Basic Law are violated if
Sovereign rights without a sufficient limitation to a democratic or not
only weakly legitimized institutions are transferred (see BVerfGE 89, 155 <187>;
123, 267 <351>; 142, 123 <193 f. Marg. 134>).
However, these explanations can be found in the context of a commercial contract
European Union, which does not guarantee that the Member States in the
Agreement provided committees are represented and determining influence
can take on their decisions. Why something comparable for the
international treaty of the Federal Republic of Germany according to Art. 59 Para. 2
If the Unified Patent Court to be established under the Basic Law applies, the constitutional
is not substantiated. The mere appeal to the judgment of the Senate of
October 13, 2016 in terms of CETA is not enough because one
Germany's equal participation in the decisions of the administrative
committee is fundamentally secured (Art. 41 Para. 2 EPC) and these resolutions
a majority of three quarters of the votes require (Art. 12 para. 3 EPC). The
Constitutional complaint also does not deal with the fact that the Federal Republic
Germany in the revision of the agreement under Art. 87 (3) EPCC
Has the right of veto and that the work of the Administrative Committee goes beyond
on Art. 23 Para. 2 and Para. 3 GG in conjunction with the Law on Cooperation
work by the Federal Government and the German Bundestag in matters of
European Union (EUZBBG) of July 4, 2013 (BGBl I p. 2170) parliamentary
is tied back.
Even the domestic requirements resulting solely from Article 80.1 of the Basic Law
assertion of an unauthorized
the democratic legitimacy of the management committee will
Substitution requirements from section 23 (1) sentence 2, section 92 BVerfGG are not fair.
Typically, an integration law can only outline the program in which
Limits political development may take place, but not in everyone
Predetermine the point (see BVerfGE 123, 267 <351>; 135, 317 <429 marginal number 236>).
In this respect, the complainant is not concerned with the fact that the in
Art. 52 ff. EPCC contained regulations on the procedure as well as on the decision
Powers of the Unitary Patent Court from the Administrative Committee
cannot be changed, but that this is based on the regulation of the "individual
ten of the procedures ”. Art. 41 EPC in particular does not allow
expand the competencies of the Unified Patent Court.
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b) The complaint is also unsubstantiated, insofar as it stipulates
an upper limit for the reimbursement of costs in Art. 69 Para. 1 in conjunction with Art. 41
Paragraph 2 concerns the EPGÜ. According to Art. 69 Para. 1 EPCC, the costs to be reimbursed
Be "reasonable and reasonable", while the rules of procedure, as evidenced by the
Art. 41 para. 3 sentence 2 EPCC a fair balance between the interests of the par-
parts must guarantee. From this, at least starting points for the
Remove the upper limit's specification.
3. To the extent that the constitutional complaint violates the EPCC against EU law
complains, a violation of the complainant's right under Article 38 (1)
Sentence 1 GG from the start. Union law does not give rise to any formal ones
or material requirements of national laws, the violation of which
questioning or even violating the constitutional identity of the Basic Law
could. In addition, Union law comes under the established case law of the
Federal Constitutional Court only an application and no priority over the
German law, so that a violation of Union law does not invalidate the
national regulation leads. Nor does an infringement of EU law
ne at the same time a violation of the Basic Law. One legal sentence is sufficient
of German law and domestic law, he remains even then
effective if it violates Union law (see BVerfGE 31, 145 <174 f.>; 82,
159 <191>; 110, 141 <154 f.>; 115, 276 <299 f.>; BVerfG, decision of the 3rd chamber
of the Second Senate of 4 November 2015 - 2 BvR 282/13 -, marg. 19).
Nothing else follows from the principle of
law (see BVerfGE 123, 267 <354>; 126, 286 <303>; 129, 124 <172>). Though
this German body is constitutionally obliged to comply with the Union
right (see BVerfGE 129, 124 <172>). These must violate Union
Avoid quite as far as it is within the framework of methodologically justifiable interpretation and application
application of national law is possible (see BVerfGE 127, 293 <334>; BVerfG,
Resolution of the 3rd Chamber of the Second Senate of November 4, 2015 - 2 BvR 282 /
13 -, marg. 20). However, this alone does not mean that Union law itself leads to
constitutional yardstick would. Its validity and application in German
country are based - in accordance with Article 23.1 sentence 2 of the Basic Law - on that with the
Approval law for the contracts issued application of the law, the
there is no constitutional quality of its own (see BVerfGE 22, 293 <296>; 31, 145
<173 f.>; 37, 271 <277 f., 301>; 75, 223 <244>; 89, 155 <190>; 123, 267 <398, 400,
402>; 129, 78 <99>). This cannot be done using the principle of European
legality can be transferred (cf. BVerfG, decision of the 3rd chamber of the
Second Senate of 4 November 2015 - 2 BvR 282/13 -, marg. 21).
At this point, however, it can remain open whether there, where within the framework of the integration
a legal issue is fully regulated by Union law, with
View of the fundamental rights of the European Union (GRCh)
basic rights apply, something else could apply (see BVerfG, decision
of the First Senate of 6 November 2019 - 1 BvR 276/17 -, which opens this question
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leaves). Because with the EPGÜ-AufentG, the Unified Patent Court is supposed to be an independent
supranational institution beyond the European Union.
There are no specific Union law requirements for this.
C.
To the extent permissible, the constitutional complaint is also well founded. Art. 1 para. 1 sentence
1 EPGÜ-AufentG complies with the constitutional requirements of Art. 23 para. 1
Sentence 3 in conjunction with Article 79.2 of the Basic Law does not do justice and violates the complaint
defuehrer therefore in his right equivalent to fundamental rights from Art. 38 Para. 1 Sentence 1 in
Connection with Article 20.1 and Article 2 in conjunction with Article 79.3 of the Basic Law.
I.
Consent laws on international treaties, which are contained in a supplement
or other special proximity to the integration program of the European
Union are to be measured against Article 23.1 of the Basic Law (1.). As far as the basic
law to change or supplement its content or to make such changes or changes
allow additions, they require in accordance with Art. 23 Para. 1 Clause 3 in connection with
Article 79.2 of the Basic Law of a two-thirds majority in the legislative bodies
(2.). An international legal agreement entered into in violation of these requirements
obligation that affects the impact of supranational public violence on
citizens in Germany opens the door, violates their fundamental rights
same right under Article 38 paragraph 1 sentence 1, Article 20 paragraph 1 and paragraph 2 in connection with
Art. 79 sec. 3 GG (3.). In addition, there are always those arising from Article 79.3 of the Basic Law
the resulting material limits to the transfer of sovereign rights
ten (4.).
1. Article 23.1 of the Basic Law provides for European integration that compared to Article 24.1
1 GG is a priority because it is more specific and contains in sentence 2 a special
other legal reservation (see BVerfGE 123, 267 <355>; Scholz, in: Maunz / Dürig, GG,
Art. 23 marg. 4 <October 2009>; Uerpmann-Wittzack, in: v. Münch / Kunig, GG, Vol. 1, 6.
Edition 2012, Art. 23 marg. 2; Simon, limits of the Federal Constitutional Court in the euro
pean integration process, 2016, p. 52 fmwN; Streinz, in: Sachs, GG, 8th ed.
2018, Art. 23 marg. 9; Jarass, in: Jarass / Pieroth, GG, 15th edition 2018, Art. 23 marg. 4). The
The regulation is based on a broad understanding of the European Union, that
also intergovernmental institutions beyond the institutional framework of the EU
European Union (a). The transfer of sovereign rights to
competent intergovernmental institutions are subject to Article 23.1 of the Basic Law if the
in a supplementary or other special proximity to
Integration program of the European Union are available (b).
a) With Article 23.1 of the Basic Law, the constitutional legislator wanted in
1992 give Germany's European integration a new foundation and
different institutions and procedures in a comprehensive regulation
merge (see BTDrucks 12/3338, pp. 1, 4 ff .; 12/6000, pp. 19 ff.). That has in
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The wording of Article 23.1 of the Basic Law was expressed insofar as Article 23.1 of the sentence
1 GG in general on the development of the European Union for the purpose of
of a united Europe speaks, while Article 23.1 sentence 2 of the Basic Law
ne transfer of sovereign rights, the addressee of which does not necessarily
Must be European Union; rather, the concrete addressee of the transfer becomes
left open ("on this"). Finally, Article 23.1 sentence 3 of the Basic Law does not only want to
of the contractual basis of the European Union, but also
"Comparable regulations".
The purpose of Article 23.1 sentence 3 of the Basic Law is to extend the integration pro
of the European Union in view of the extent already achieved
subject to procedural requirements. The constitutional amendment
To this extent, legislators have proposed the legal committee and the special
Committee of the European Union of the Bundestag, which
expansion of powers of the European Union (see BTDrucks 12 /
3896, p. 14). The constitution-changing legislature had above all the Evo-
lutive and bridge clauses at a glance (cf.BTDrucks 12/3896, pp. 14, 18 f .; BVerfGE
123, 267 <385 ff.>), But did not want to limit himself to these. It would contradict
hence the will of the constitutional legislator, part of the dynamic
and diverse development process in the context and in connection with
of the European Union from the scope of Article 23.1 of the Basic Law
hen (see BVerfGE 131, 152 <199 ff.>) and instead of a further transfer of high
rights directly to organs of the European Union and the
overall assessment of the state of European integration
to enable isolated but functionally equivalent satellite devices.
Article 23.1 of the Basic Law therefore - like its paragraph 2 - assumes a broad
Understand the concept of the European Union, which is basically its entire
Organization and its integration program includes and under certain
also to differentiate between intergovernmental institutions
and international organizations apply (see BVerfGE 131, 152
<199 ff., 217 f.>). He claims validity for all legal acts that the member
of the Federal Republic of Germany in the European Union
design, secure or supplement, and does not require that an immediate
Cash transfer of sovereign rights to organs, institutions and other bodies
len of the European Union takes place.
b) The transfer of sovereign rights to independent intergovernmental
is subject to Article 23.1 of the Basic Law if this is a de facto contract change
equals (cf. Schorkopf, in: Bonn Commentary on the Basic Law, Art. 23 Paragraph 79 <August
2011>; ders., constitutional law of international relations, 2017, § 3 marg. 189, 203;
Möllers / Reinhardt, JZ 2012, p. 693 <695 f.>; Wollenschläger, in: Dreier, GG, Vol. 2,
3rd edition 2015, Art. 23 marg. 54; Streinz, in: Sachs, GG, 8th edition 2018, Art. 23 marg. 90;
Heintschel v. Heinegg / Frau, in: Epping / Hillgruber, BeckOK GG, Art. 23 marg. 29.1 <De-
December 2019>). This can be assumed if the Integration Act and / or the
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a contractual agreement to functionally replace a contract amendment or
complete. About such "substitute Union law" (cf. Lorz / Sauer, DÖV 2012, p. 573 <573
ff.>) is about the ESM contract and the law on the ESM contract, with
to which no sovereign rights have been transferred, but a fundamental one
Reorganization of the original economic and monetary union put into work
(see BVerfGE 135, 317 <407 marg. 180> with reference to BVerfGE 129, 124
<181 f.>; 132, 195 <248 marg. 128>; aA CJEU, judgment of November 27, 2012, Pring-
le, C-370/12, EU: C: 2012: 756, marg. 73 ff.), Making them the Senate as a matter
the European Union within the meaning of Article 23.2 of the Basic Law (see BVerfGE
131, 152 <219>).
Such primary law equivalence requires a supplementary or other special
their proximity to the integration program of the European Union
(cf. Scholz, in: Maunz / Dürig, GG, Art. 23 Paragraph 63 <October 2009>; Schorkopf, in:
Bonn commentary on the GG, Art. 23 marg. 64 <August 2011>; Calliess, NVwZ 2012,
P. 1 <3>; Hölscheidt / Rohleder, DVBl 2012, p. 806 <807 f.>; Kube, WM 2012, p. 245
<247 f.>; Wollenschläger, NVwZ 2012, p. 713 <715>; ders., in: Dreier, GG, Vol. 2, 3.
Edition 2015, Art. 23 marg. 41; Schmahl, DÖV 2014, p. 501 <507 f.>; Classen, in: v. Man-
goldt / Klein / Starck, GG, Vol. 2, 7th edition 2018, Art. 23 marg. 6, 12; Jarass, in: Jarass /
Pieroth, GG, 15th edition 2018, Art. 23 marg. 3; Streinz, in: Sachs, GG, 8th edition 2018, Art.
23 marg. 56a, 90; Wolff, in: Hömig / Wolff, GG, 12th edition 2018, Art. 23 marg. 4, 24; I think
schel v. Heinegg / Frau, in: Epping / Hillgruber, BeckOK GG, Art. 23 marg. 5 <December
2019>). One cannot determine whether such a relationship exists
final and at the same time distinctive feature, but only
based on an overall view of the circumstances, regulatory objectives, contents and effects
conditions (see Art. 23 Para. 2 GG BVerfGE 131, 152 <199>).
For a supplementary or other special proximity relationship, for example,
that the planned institution is anchored in primary law, the project in preliminary
provision of secondary or tertiary law or other qualified
Ornate connection with the European integration program
Union exists. This also applies if the project (also) by organs of the European
Union or its involvement in the implementation of the
Project - for example by way of organ lending - is provided. For a qualified
It also speaks of a complementary and close relationship if an international law
contract only between Member States of the European Union
should be closed if the purpose of the project is mutual
Interaction with a policy area transferred to the European Union
and especially when the path of international law coordination is chosen
is not because equal efforts to anchor it in Union law
have found the necessary majorities (see BVerfGE 131, 152 <199 f.>).
2. Insofar as integration laws and / or international agreements that are
supplementary or other special proximity to the integration program
the European Union, change the content of the Basic Law or
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add or enable such changes or additions, they need
not only the approval of the Federal Council (Article 23.1 sentence 2 GG), but
approved by the Bundestag and Bundesrat with the majority of Article 79.2 of the Basic Law
will be. Such a constitutional relevance is evident from Art. 23 para. 1
Sentence 3 GG not only the justification of the European Union and the change of its
contractual basis - here it is established by constitutional order
- but also "comparable regulations".
The wording of Article 23.1 sentence 3 of the Basic Law refers to an amendment of the
Basic Law "according to its content" and thus clearly links to that of legal
distinction between the formal constitution
Changes in the meaning of Article 79.1 sentence 1 of the Basic Law and substantive constitution
amendments without changes to the constitutional text (see BTDrucks 12 /
6000, p. 21; BVerfGE 58, 1 <36>; 68, 1 <114>). Article 23.1 sentence 3 of the Basic Law awards
not only of changes in the content of the Basic Law, but also of
"Additions" and the mere "enabling" of changes and additions.
This speaks for a broad understanding of "constitutional relevance". Under systematic
table-teleological aspects is added that the determination of the integration
legislators should contain more procedural and material than Article 24.1 of the Basic Law,
what - apart from the approval of the Federal Council - mainly through
the reference contained in Article 23.1 sentence 3 of the Basic Law to Article 79.2 and
3 GG happens.
The historical interpretation underlines this result. Article 23.1 of the Basic Law was part of it
of an overall package that addresses the doubts about the constitutional
legal admissibility of the Maastricht Treaty (see, for example,
Heugen and Senator Peschel-Gutzeit at the 3rd meeting of the Common Constitution
committee on March 12, 1992, shorthand report p. 12, 20; BVerfGE
37, 271 <279 f.>; 58, 1 <40 f.>; 59, 63 <86>; 73, 339 <375 f.>) And its possible
Update (cf. Di Fabio, The State 32 <1993>, p. 191 <195>), continue
Subsequent integration steps should also be subject to higher hurdles. The ver
Legislators amending the constitution can be assumed that every
re transfer of sovereign rights to organs, institutions and other bodies
of the European Union is only possible with a constitutional majority
would be. The Federal Government's different interpretation in the legislative
The Federal Council explicitly objected to the throw. In this respect, the final
reports to the Joint Constitutional Commission that Article 23
Paragraph 1 sentence 2 GG sovereign rights transfers up to the limit, "where from
constitutional reasons, a new contract or a change in the contractual
basics would be necessary ”(cf. BTDrucks 12/6000, p. 28). Comes even clearer
this in the report of the special committee “European Union (Treaty of Maas-
tricht) ”of the German Bundestag, which is the final report of the
Common constitutional commission underlies. It expressly states
that "a transfer of sovereignty (...) then by a two-thirds majority-
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should be made pending if one goes beyond existing authorizations.
goes. Article 23 (1) sentence 3 is based on this consideration (cf. BTDrucks 12/3896,
P. 18). Against this background, the final report names interventions in “the
jurisdictional order established by constitutional law ”(cf. BTDrucks 12/6000, p. 21)
as an example that a transfer of sovereign rights is a material change
of the constitution.
The constitutional legislator assumed that
any "transfer of sovereignty" going beyond existing authorizations
right represents a constitutional amendment (see the reference to BVerfGE 58, 1
<36> in BTDrucks 12/6000, p. 21). The report of the special committee concludes
clearly that this decision was deliberately also in the light of the integration
of the Basic Law (see BTDrucks 12/3896, p. 18). The - on
identical text basis - alternative interpretation offered by the federal
design justification could be against the legislative bodies
not enforce unanimously represented opinions (see BTDrucks 12 /
6000, p. 28; Bothe / Lohmann, ZaöRV 58 <1998>, p. 1 <10 ff.>). However, it will
Basic law not with every transfer of sovereign rights to the European one
Union or in a supplementary or other special proximity to it
standing facilities are changed or supplemented according to their content or are to be
changes or additions. Especially in the integration program
sufficiently determined ("covered") and with a two-thirds majority
Already approved transfers do not constitute a (repeated) material change to the
Basic Law. Article 23 paragraph 1 sentence 2 GG applies to them alone.
In contrast, the transfer of new responsibilities to the European Union leads
or the establishment of new intergovernmental bodies that
relationship or other special proximity to this, due to their
lack of commitment to the fundamental rights of the Basic Law and the difficult
predictable further development of their integration program regularly
that with the transfer of sovereign rights also changes to the Basic Law
"made possible" in the sense of the regulation (cf. Classen, in: v. Mangoldt / Klein /
Starck, GG, Vol. 2, 7th edition 2018, Art. 23 marg. 14; as a result also Scholz, NJW 1992,
P. 2593 <2599>; ders., NVwZ 1993, p. 817 <822>; see. also in, in: Maunz / Dürig,
GG, Art. 23 marg. 118 ff. <October 2009>). This is especially the case if the inte-
national law and / or the international treaty - as domestic law
designed - established an exclusive competence of the European Union
or enables the federal legislature to be completely suppressed (Art. 73 f.,
105 GG), interference with the legislative competence of the federal states is permitted (Art.
30, 70 GG) or the administrative (Art. 83 ff., 108 GG) and jurisdictional compe
limits (Art. 92 GG) are affected by the federal and state governments. A European
Basic legal requirements must also be assumed if the integration law
law and / or the international contract the constitutional requirements for
local self-government (Art. 28 sec. 2 GG), the Bundesbank (Art. 88 GG)
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134
135
or changed or reformed the structure of the court (Art. 92 ff., 96 GG).
That the transfer of jurisdictional tasks to a new one
intergovernmental institution constitutes a substantive constitutional amendment,
also detached from the associated, methodologically indispensable authority to
judicial legal training (see BVerfGE 75, 223 <241 ff.>; 126, 286 <305 f.>) -
On the hand.
3. A consent law to an international contract that is in violation
against Article 23.1 sentence 3 in conjunction with Article 79.2 of the Basic Law
likes the exercise of public authority by organs, institutions and others
Bodies of the European Union or one with it in a supplementary or other
intergovernmental institution not particularly close
legitimize (a) and therefore violates the citizens' fundamental rights
same right under Article 38 paragraph 1 sentence 1, Article 20 paragraph 1 and paragraph 2 in connection with
Article 79.3 GG (b).
a) Are sovereign rights not in the procedure provided for by the constitution
transferred, they are not transferred (effectively) at all. An opening of the German
There is no legal system for the influence of supranational law.
With the use of sovereign powers that have not been (effectively) transferred
supranational organizations therefore use sovereignty without
to be democratically legitimized. Appropriate measures by organs, institutions
gen and other bodies of the European Union or in a supplement
or other special proximity to this standing intergovernmental
Establishment necessarily went ultra vires and thus violated the basic
sentence of popular sovereignty from Article 20.2 sentence 1 GG (see BVerfGE 83, 37 <50
f.>; 89, 155 <182>; 93, 37 <66>; 130, 76 <123>; 137, 185 <232 f. Marg. 131>; 139, 194
<224 marg. 106>; 142, 123 <174 marg. 82>; 146, 216 <252 f. Marg. 52 f .; 255 marg. 57>;
BVerfG, judgment of the Second Senate of July 30, 2019 - 2 BvR 1685/14 and others -, para.
120).
b) Authorizes an integration law for organs, institutions and other bodies
the European Union or with this in a supplementary or
other special proximity relationships between intergovernmental institutions
not effective in adopting measures, it hurts citizens
Citizens of Germany in their rights equivalent to fundamental rights under Article 38 paragraph 1 sentence 1,
20 sec. 1 and 2 in conjunction with Art. 79 sec. 3 GG.
According to the constant case law of the Federal Constitutional Court, this is exhausted
the right to vote in German guaranteed to the individual in Article 38.1 sentence 1 of the Basic Law
Bundestag not in a formal legitimation of (federal) state authority, but
also includes the citizen's right to be exposed only to public violence
to be who he can legitimize and influence (cf. BVerfGE 123, 267 <341>;
142, 123 <191 marg. 128>). As a fundamental right to participate in the democratic
Self-rule of the people basically does not confer Article 38.1 sentence 1 of the Basic Law
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Right to lodge a complaint against parliamentary decisions, in particular legislative
conclusions. However, his warranty area covers structural changes in the
structures of state organization law, such as those used for the transfer of
rights to the European Union or other supranational institutions
can occur (see BVerfGE 129, 124 <169>; 142, 123 <190 marginal note 126>).
Article 38.1 sentence 1 of the Basic Law protects citizens who are entitled to vote-
half before a transfer of sovereign rights according to Art. 23 Abs. 1 GG, which under
Exceeding the limits of Art. 79 (3) in conjunction with Art. 23 (1) sentence
3 GG the essential content of the principle of popular sovereignty (Art. 20 para. 1
and sec. 2 GG) materially. The Federal Constitutional Court is examining this as part of
identity control as it is the subject of the judgments of the Maas Treaty
tricht (see BVerfGE 89, 155 ff.) on the Lisbon Treaty (see BVerfGE 123, 267
ff.) and the ESM contract (see BVerfGE 132, 195 ff .; 135, 317 ff.). Art. 38 para. 1
Sentence 1 in conjunction with Article 20 paragraph 1 and paragraph 2 sentence 1 GG also enables
obvious and structurally significant organizational overruns
institutions, agencies and other bodies of the European Union
Control by the Federal Constitutional Court (cf. most recently BVerfG, judgment of the two
ten Senate of 30 July 2019 - 2 BvR 1685/14 and others -, marg. 140 ff.).
In the area of ​​application of Article 23.1 of the Basic Law, Article 20.1 and 2 in protects
In conjunction with Article 79.3 of the Basic Law, those entitled to vote also consider that
the formal requirements of Article 23.1 of the Basic Law for a transfer of ho
rights that the legislature in the process of European integration also
procedurally should contain more than under Article 24.1 of the Basic Law (see margin no. 119 ff.),
be held (formal transfer control). While a constitutional amendment
can be reversed with the corresponding majorities,
powers that are transferred to another subject of international law, as a rule
"Lost" and cannot be easily "retrieved" on their own.
In the context of the European Union there is also the fact that Art. 4 (3) TEU
may result in the obligation not to withdraw consent once given
(see e.g. Advocate General Bot, Opinion of 18 November 2014, C-146/13,
EU: C: 2014: 2380, marg. 175 ff.), Which results in an additional specific hazard
for the future content of the right to democratic self-determination
could give. Above all, however, there was no lack of effective transfer of sovereign rights
any measures taken by organs, institutions and others
The European Union or a supranational organization
cratic legitimation.
This is the core of the link in Art. 38 Para. 1 Clause 1, Art. 20 Para. 1 and Para. 2
extension with constitutional right that is enshrined in Article 79.3 of the Basic Law
democratic self-determination affected, which is not at disposition. Without that
Possibility to use the objective principles of Art. 20 sec. 1 and sec. 2 GG in their
to have the core protected by Article 79.3 of the Basic Law checked would lose the demo
core content of Article 38.1 sentence 1 of the Basic Law makes sense (cf. Simon, limits
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of the Federal Constitutional Court in the European integration process, 2016, p. 108).
4. Finally, with each transfer of sovereign rights
constitutional identity of the Basic Law
respect, think highly of. Also when transferring sovereign rights to an additional
and other special proximity to the European Union
state institution, the integration legislator must ensure that
the principles of Article 1 and Article 20 of the Basic Law are not affected (Article 23.1 sentence 3
in conjunction with Art. 79 (3) GG). As part of identity control, the Federal Constitution
Therefore, the judge decided whether those declared by Article 79.3 of the Basic Law untouchable
Principles through an integration law and / or an international treaty
be touched (see BVerfGE 123, 267 <344, 353 f.>; 126, 286 <302>).
With regard to the principle of democracy in Art. 20 sec. 1 and sec. 2 GG,
to ensure that the German Bundestag in the event of a transfer of
Sovereign rights according to Art. 23 Abs. 1 GG own tasks and powers of sub-
political weight remains (see BVerfGE 89, 155 <182>; 123, 267
<330, 356>) and that he remains able to exercise his overall budgetary responsibility
perceive word (see BVerfGE 123, 267 <359>; 129, 124 <177>; 132, 195
<239 marg. 106>; 135, 317 <399 f. Marg. 161>). Article 20 paragraphs 1 and 2 of the Basic Law are prohibited
also blanketter authorizations (see BVerfGE 58, 1 <37>; 89, 155 <183 f., 187>;
123, 267 <351>; 132, 195 <238 marg. 105>; 142, 123 <192 marg. 130 ff.>) And will
violated if the integration legislator violates the intended integration pro-
gram not sufficiently determinable. The Bundestag is allowed to
Group responsibility in particular not by removing others
Transfers unspecified authorizations to actors or that it withdraws from organs,
Institutions or other bodies of the European Union, with it in an initial
intergovernmental
third-party institutions or other member states and thus
no longer remains “master of his decisions” (cf. BVerfGE 129, 124 <179 f.>; 132, 195
<240>; 135, 317 <401 marg. 163 f.>).
II.
According to these standards, Art. 1 Para. 1 Clause 1 EPGÜ-AufentG violates the appeal
defhrer in his right from Art. 38 Para. 1 Sentence 1, Art. 23 Para. 1 Sentence 3 in conjunction
with Article 79.2 of the Basic Law, because the EPGÜ-AufentG does not require the approval of
two thirds of the members of the Bundestag (Article 79.2 GG)
that is (1.). Whether the establishment of an unconditional primacy of Union law in
Art. 20 and Art. 21 sentence 2 EPC against Art. 20 Para. 1 and Para. 2 in conjunction with
Article 79.3 of the Basic Law is therefore not subject to a decision (2.).
1. The EPGÜ-AufentG transfers sovereign rights to the Unified Patent Court (a),
is in a supplementary or other special proximity to the integra-
program of the European Union (b) and causes a material
All constitutional changes (c). However, the Bundestag does not agree with the one pursuant to Art.
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23 sec. 1 sentence 3 in connection with Art. 79 sec. 2 GG required two-thirds
Majority has been decided (d) and therefore violates the complainant in its
a right equivalent to fundamental rights under Article 38 (1) sentence 1 in conjunction with Article 20
Paragraphs 1 and 2 in conjunction with Article 79.3 of the Basic Law (e).
a) The EPGÜ-AufentG transfers jurisdictional tasks to a supranational one
Court and legislative tasks on its administrative bodies and opens the
German legal system in such a way that the exclusive
of the Federal Republic of Germany within the scope of the Basic Law
as far as withdrawn and the immediate validity and applicability of the
European law is left space (see BVerfGE 37, 271 <280>; 58, 1 <28>;
59, 63 <90>; 73, 339 <374 f.>). Art. 32 EPC refers to the Unified Patent Court
certain litigation for exclusive decision and transfers
the authority to make a binding dispute resolution. This “archetypal sovereign
activity ”(cf. Roellecke, VVDStRL 34 <1976>, p. 7 <25>; Classen, in: v. Man-
goldt / Klein / Starck, GG, Vol. 3, 7th edition 2018, Art. 92 marg. 1) is an elementary prerequisite
for the enforcement of the state monopoly on the use of force (see BVerfGE 54, 277
<291>) and indispensable for the peaceful coexistence of people. By
Art. 82 para. 1 sentence 1 EPCC, the decisions and orders of the
unitary patent court also determines enforceable titles. Except-
Art. 40 para. 2 and Art. 41 para. 1 and para.
Powers of the Administrative Committee to amend the
Articles and the adoption and amendment of the rules of procedure.
b) The EPGÜ is in a supplementary or other special proximity relationship
on the European Union's integration program (cf.
desregierung BTDrucks 18/11137, p. 8) and replaces EU law on the matter
Regulations whose anchoring in European Union law does not
found majorities (see BVerfGE 131, 152 <200>).
aa) The EPCC finds a direct link in Art.
262 TFEU. This makes it clear that the creation of a union legal
jurisdiction in the area of ​​patent law wanted by the member states,
is not yet included in the integration program. In this regard, Art. 262
TFEU ​​a transfer of jurisdiction over litigation
to the Court of Justice on European intellectual property law,
however, this to a unanimous Council decision (sentence 1) and a Ratifika-
tion by the member states (sentence 2). So far there have not been enough for both
Support. Regardless of the question of whether the establishment of the Uniform Pa
international court, this provision of Art. 262 TFEU
is running, the provision shows that the Unified Patent Court is only a functional
nal equivalent for a "correct" union patent jurisdiction.
bb) The EPC is also issued on the basis of Art. 118 TFEU
secondary law closely interwoven (see also recital 4 to
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EPGÜ). It only develops its regulatory content in interaction with these regulations.
succeeded in creating a uniformly effective European property right
to provide for patents. It is linked to Regulation (EU) No. 1257/2012 and the
Regulation (EU) No. 1260/2012, which gives the European patent a uniform effect.
create kung. The entry into force of these regulations is in line with the entry into force of the EP
GÜ coupled (cf. Art. 18 para. 2 subpara. 1 Regulation <EU> No. 1257/2012 as well
Art. 7 para. 2 Regulation <EU> No. 1260/2012), so that the effectiveness of the EPCC
is also a prerequisite for the effectiveness of the relevant secondary law.
An essential part of the judicial tasks of the Unified Patent Court
will relate to rights and claims regulated by Union law (cf. Art. 2
ben f and h, Art. 3 letters a and b in conjunction with Art. 32 EPCC), whose uniform effectiveness
only through the regulations contained in the EPCC (Art. 25 to 28, 30 EPCC)
is made.
The close integration of the EPCC with the European integration program
Union is also expressed in the fact that, despite its
qualification as an independent distinction from the European Union
supranational institution is directly bound by Union law (Art. 24 para.
1 letter a EPC)). The EPCC also commits it to the priority of the university
onsrecht (Art. 20 EPGÜ), whereby the contracting member states an obligation
customers, “Unrestricted application by the Unified Patent Court and
Respect for EU law in their respective territories and judicial
To protect the rights of individuals arising from this right
ten ”(see recital 9).
cc) The Convention has also become authoritative through organs of the European
Union (co-) driven forward (see Augenstein / Haertel / Kiefer, in: Fitzner / Lutz / Bodewig,
BeckOK PatR, EPGÜ, Rn. 5 <15. January 2020>). The project of a uniform eu-
European patent jurisdiction has long been a necessary part of a
Union patent law considered, the same from the European Commission
was endorsed as by the Council. In any case, since the turn of the millennium
European Commission on Centralization of Judicial Protection in
worked towards this area (see draft GPVO COM <2000> 412 final, OJ EU
C 337 E of November 28, 2000, p. 278; Council document 7159/03 of March 7th
2003; Council document 17229/09 of December 7, 2009; Adam / Grabinski, in: Ben-
kard, European Patent Convention, 3rd ed. 2019, Before preamble marg. 36 ff.)
and it also deals with the Court. The original design was
European patent jurisdiction in the report dated March 8, 2011 by the judicial
Court discarded (see ECJ, opinion 1/09, EU: C: 2011: 123, paragraph 71 ff.). The there
Regulations seen were, however, adopted in the "European Patent Package"
In addition to the EPC, Regulation (EU) No. 1257/2012 and the
Regulation (EU) No. 1260/2012 includes (see Advocate General Bot, Opinion
18 November 2014, C-146/13, EU: C: 2014: 2380, marg. 3) and - detached from
issues of persistence - have been strongly promoted by the European Parliament
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(see European Parliament resolution of 11 December 2012, 2011 /
2176 <INI>, OJ EU No.C 434 of December 23, 2015, p. 34 ff.).
dd) The institutions of the European Union are involved in the implementation of the EPC in
different extent involved. The General Secretariat of the Council is
which of the instruments of ratification was used (Art. 84 para. 2 sentence 2 and
Paragraph 4, Art. 85 EPC), the European Commission is to adopt and amend the
Rules of Procedure are involved and their compatibility with Union law is
create (Art. 41 Paragraph 1 and Paragraph 2 EPCC). At the meetings of the administrative
she is also represented as an observer (Art. 12 Para. 1 Sentence 2 EPC). The
European patent court itself can or must ultimately, according to
Art. 267 TFEU obtain preliminary rulings from the Court if the advance
settlements are fulfilled (Art. 21 EPC).
ee) In addition, the Convention is only available to member states of the Euro
European Union open. Art. 1 para. 2 EPCC defines the Unified Patent Court in
so far as a "common court of the contracting member states", the term
Contracting Member State, as shown in Art. 2 letters b and c EPC,
Member State of the European Union, the contracting party to this
is coming. The limitation of the circle of contracting parties also takes place in the
Recitals to the EPCC precipitation. So recital 1 speaks
of that “cooperation between the Member States of the European University
on in the field of patents make a significant contribution to integration
process in Europe, in particular to create a free goods
and trade in services within the European market
Union and to implement a system to ensure that
competition in the internal market is not distorted ”, while the 14th recital
makes it very clear that “this agreement
European Union should be open to accession ”. This limitation is ultimately rooted in
the - generalizable - case law of the Court of Justice (cf. ECJ, expert opinion
8 March 2011, opinion 1/09, EU: C: 2011: 123, marg. 77 f., 89), it with a view
considers the integrity of the EU legal order inadmissible, "someone outside the
international Union institutional and judicial framework
exclusive jurisdiction to decide on a substantial one
Number of actions brought by individuals in connection with the Community patent and for
Interpretation and application of EU law in this area ”(cf.
CJEU, Opinion of 8 March 2011, Opinion 1/09, EU: C: 2011: 123, marg. 89).
That not all member states of the European Union are also contracting
are the supplementary or other special proximity relationship
on the European Union's integration program. On the contrary
this through the Institute for Enhanced Cooperation in accordance with Art. 20 TEU, Art. 326
ff. TFEU expressly legitimized and underlines the close interlinking with the
institutional structure of the European Union.
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153
154
155
156
c) The EPGÜ-AufentG is subject to the requirements of Art. 23 para. 1 sentence 3 in
binding with Article 79.2 of the Basic Law because it Europeanizes the provisions of the Basic Law
and causes a substantive constitutional change.
aa) The EPC has relevance to the constitution and provides a comparable regulation in the
The meaning of Article 23.1 sentence 3 of the Basic Law because it is a functionally equivalent regulation
to change the contractual basis of the European Union according to Art.
48 TEU contains.
The EPCC provides an amendment or replacement of Art. 262 TFEU
According to this provision, the Council can, in accordance with a special legislative
proceed unanimously after consulting the European Parliament
with which the Court, to the extent determined by the Council,
jurisdiction is transferred over legal disputes in connection with the
Implementation of acts adopted under the Treaties with which European
Intellectual property titles are created to decide. The sales
Trag sees not only a special legislative procedure and a unanimous one
Council decision before (Art. 262 sentence 1 TFEU), but also that this legal
act only after approval of the Member States in accordance with their respective
constitutional provisions come into force (Art. 262 sentence 2 TFEU). The sheep
have jurisdiction of the Court of Justice for industrial property protection
Member States appear to be seriously interfering with national legal
Responsibility assessed and designed as a process in need of ratification.
The German legislator has this - following the Lisbon ruling (see BVerfGE
123, 267 <387 f.>) - as evidenced by Section 3 Paragraph 2 of the Law on Perception
responsibility for integration of the Bundestag and the Bundesrat in
opportunities of the European Union (IntVG) as a special treaty
procedure classified.
With the EPC and the establishment of the Unified Patent
the contracting member states have a functional alternative to that in Art.
262 TFEU provided for the transfer of case law tasks to the
Court of Justice elected, for whom there was evidently no legal basis. There-
they changed the integration program of the Lisbon Treaty, the
de facto deprived the basis in Art. 262 TFEU and the possibilities
new type of uniform jurisdiction in commercial law
protection based on the European Union, because it is neither for the
contractually prescribed way of Art. 262 TFEU still for a change after
Art. 48 TEU gave the necessary unanimity.
From the perspective of Article 23.1 sentence 3 of the Basic Law, this is a change in the contractual
Foundations of the European Union and thus a case of "comparable regulations".
The reservation on ratification in Art. 262 sentence 2 TFEU confirms this (cf. Sauer, Staats-
right III, 5th edition 2018, § 4 marg. 8c). The Court also comes in its opinion
on the free trade agreement between the European Union and Singapore
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158
159
160
(EUSFTA) to the result that an international agreement, the disputes
of the jurisdiction of the Member States, the consent of
Member States required (see ECJ, report of May 16, 2017, report 2/15,
EUSFTA, EU: C: 2017: 376, marg. 89).
bb) Independent of the specific structure of the patent jurisdiction
a transfer of jurisdictional tasks to the exclusion of German law
amending the content of the Basic Law within the meaning of Article 23 (1) sentence
3 GG. The judicial power is according to Art. 92 GG by the federal constitution
court, the federal courts and the courts of the federal states. Every over-
modified jurisdictional tasks to intergovernmental courts
this comprehensive allocation of case law and in this respect means a material
le constitutional amendment. It not only affects the fundamental rights guarantees of the
Basic Law because German courts no longer protect basic rights
(see BVerfG, decision of the First Senate of November 6, 2019 -
1 BvR 276/17 -, marg. 42 ff., 54), but also affects the specific design of the
Separation of powers according to Article 20.2 sentence 2 of the Basic Law. Already in his judgment on the contract
The Lisbon Senate has therefore made it clear that responsibility for legal
care - especially with regard to the judicial system - usually with the
Member States must remain (see BVerfGE 123, 267 <415 f.>; See also ECJ,
Judgment of 24 May 2011, C-54/08, Commission v Germany, EU: C: 2011: 339, paragraph. 83
ff .; Judgment of 12 December 1996, C-3/95, travel agency Broede / Sandker,
EU: C: 1996: 487, marg. 37 f., 41).
(1) Art. 32 EPC transfers to the Unified Patent Court those listed there
Jurisprudence and thus a not insignificant section of the civil law
vil and administrative jurisdiction of the member states of significant
economic relevance for exclusive settlement, unless lawsuits
after a transition period of seven years in the national courts
be lifted (Art. 83 EPC). His judgments are in accordance with Art. 82 Para. 3 Clause 2 EPC
easily enforceable. The order of submission of evidence by the
Counterparty or third party (Art. 59 EPC), the confiscation of objects (Art.
60 (2) EPC) or the “inspection” of premises (Art. 60 (3) EPC)
represent interference with fundamental rights and work directly in the legal area of ​​the
member states (Art. 34 EPC).
At the same time, the Unified Patent Court is also responsible for the interpretation and application
national law (see Art. 24 para. 1 letter e EPCC),
through it - as intended by the Member States (7th recital to the EPCC)
- Becomes part of the domestic jurisdiction (cf. Art. 1 para. 2, Art. 82 para. 3 sentence
2 EPGÜ).
(2) Ultimately, the EPC leads to a significant modification of the basic
law for matters of industrial property protection
organization. Article 96.1 of the Basic Law enables the - actually carried out - establishment of a
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162
163
164
165
166
independent federal court, for which Article 96.3 of the Basic Law
to the Supreme Court. This constitutionally ordered structure
The German court constitution is modified by the EPCC in order to
teres court supplemented and provided with its own internal appeal. In
In this sense, the EPCC contains a substantive constitutional amendment in the above
laid sense.
Art. 24 Para. 1 EPCC gives the Convention priority over the national one
Granted right and the comprehensive validity of the Basic Law inso-
withdrawn far.
d) The EPGÜ-AufentG was approved by the legislative bodies with the
adorned majority of Article 79.2 of the Basic Law.
Given the special importance of the majority requirement for the integration
of the constitution and the democratic legitimacy of interventions in the constitution
According to the systematic order comes a law that the majority of Article 79.2 of the Basic Law
failed, failed. In this respect, nothing else applies than with a law that the
Majorities not required under Article 42.2 or Article 121 of the Basic Law
reached (cf. Klein, in: Maunz / Dürig, GG, Art. 121 Paragraph 23 <June 2017>; Magiera, in:
Sachs, GG, 8th edition 2018, Art. 121 marg. 1; Brocker, in: Epping / Hillgruber, BeckOK GG,
Art. 121 marg. 15 <December 2019>). It is no coincidence that state practice shows one
qualified majority in the input formula, as well as a granted
vote of the Federal Council.
The qualified majority of Article 79.2 of the Basic Law was in the German Bundestag
undisputedly not achieved. This enables the establishment of an effective “unanimous
“Acceptance of the draft law in the protocol and transmission to the federal
nothing to change (see also § 48 Paragraph 2 and Paragraph 3 GO-BT; BVerfGE 106, 310
<329 f., 336>). The EPGÜ-AufentG is therefore not effective by the German Bundestag
been decided.
e) After all, the EPGÜ-AufentG violates the complainant's fundamental
Equal right to democratic self-determination under Article 38 paragraph 1 sentence
1 in conjunction with Article 20.1 and Article 2 in conjunction with Article 79.3 of the Basic Law.
After the decision by the legislative bodies, its entry into force
cede only from the copy by the Federal President, to that extent
there is no political discretion (see Brenner, in: v. Mangoldt / Klein / Starck, GG,
Vol. 2, 7th edition 2018, Art. 82 marg. 24 mwN; aA Butzer, in: Maunz / Dürig, GG, Art. 82
Marg. 209 f. <December 2014> mwN). The concrete danger of a (basic) legal
Impairment is equivalent to the (fundamental) violation of rights in this respect (see BVerfGE 136,
277 <303 marg. 70; 307 f. Marg. 85>; see. also marg. 140).
2. Insofar as there are indications that the establishment of an unconditional
priority of EU law in Art. 20 EPC over Art. 20 Para. 1 and Para. 2 in
The Federal Constitutional Court reviews the connection with Article 79.3 of the Basic Law
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168
the measure in question is fundamentally comprehensive on its
20 para. 1 and 2 in conjunction with Art. 79 para. 3 GG (see BVerfG,
Judgment of the Second Senate of July 30, 2019 - 2 BvR 1685/14 and others -, para. 206). Of
however, a final decision can be waived in the present case because
the invalidity of the EPGÜ-AufentG arises for other reasons.
D.
The decision to pay is based on Section 34a (2) BVerfGG.
E.
The decision was made with 5: 3 votes.
Vosskuhle
Huber
Hermanns
miller
Kessal-Wulf
king
Maidowski
Langenfeld
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2nd
3rd
Divergent opinion of the judges König and Langenfeld and the judge
Judges Maidowski
to the decision of the Second Senate of February 13, 2020
- 2 BvR 739/17 -
The acceptance of the Senate from the "right to democracy" in Art. 38 Para. 1
The first sentence, Art. 20 sec. 1 and sec. 2 in conjunction with Art. 79 sec. 3 GG result
a right to complain with the constitutional complaint to comply with the
Article 23.1 sentence 2 and sentence 3 in conjunction with Article 79.2 of the Basic Law for the transfer
sovereignty formal requirements (so-called
formal transfer control), we are unable to join.
The question of how the participation of the Federal Republic legitimized by Art. 23 GG
Germany in the development of the European Union under the constitution
legally guaranteed freedom of decision and without interference in the
Article 79.3 of the Basic Law allows the protected identity of the constitution to be realized
the case law of the Federal Constitutional Court has been intensive and has been for a long time.
This case law is based on the - correct - knowledge that
The transfer of sovereign rights entails risks: on the one hand,
sovereignty necessary structural changes in the internal
state constitutional area
connected, which is based in the
Find a constitutional mandate to help shape European integration
and are therefore acceptable. On the other hand, the constitution has secured
against the surrender of constitutional elements that uphold the identity of the fundamental
legal order and which are therefore neither nationally
change of version still as a result of integration into European or international
Structures are available. The one developed by the Senate jurisprudence
The reservation of identity control and ultra-vires control comes about
Task to give these safeguards practical effectiveness.
A key issue in achieving effective compliance control
constitutional limits when fulfilling the constitutional mandate to
Structural participation in European integration is through whom procedures
before the Federal Constitutional Court can be initiated with the aim to examine
to let the constitutional organs live up to their responsibility to integrate
are or whether they exceed the limits of the integration process
to have. Regardless of organ litigation and constitutional complaints from
Individuals who may be through ultra vires or in an identity violating manner
Any sovereign acts that have been committed are specifically affected in their fundamental rights
Eligible voters with a constitutional constitution based on Article 38.1 sentence 1 of the Basic Law
complained to the Federal Constitutional Court about a violation of the “claim
to democracy ”. This will benefit all voters
fundamental right to protection against an emptying of the
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5
legitimized German state authorities. This protection also applies
the transfer of sovereignty to the defense against measures by
gane, institutions and other bodies of the European Union, the ultra vires im
In accordance with the Senate case law. Article 38.1 of the Basic Law comprises
thus a claim to the responsibility for integration by the
responsible constitutional bodies. According to their scope and validity
basically the regulation aims - exclusively - at the realization of democratic
Participation rights, but not a comprehensive legality check
critical majority decisions; it does not serve to control the content
cratic processes, but is aimed at enabling them (see BVerfGE
129, 124 <168>; 134, 366 <396 f. Marg. 52>; 142, 123 <190 marg. 126>).
The new type of formal transfer control based on Article 38.1 sentence 1 of the Basic Law
le differs in principle from that in the previous case law of the Federal
of the constitutional court from the "right to democracy" to secure the de-
Mocratic influence of the voters in the process of
European integration derived control reservations in the form of identity
trolls and the ultra-vires control (I.). The formal transmission control
fundamental extension of the right under Article 38.1 sentence 1 of the Basic Law fails to recognize
substance and limits. For a violation of the substance of the right to vote,
understood as the core of democracy rooted in human dignity
principle, is in a case where non-compliance with formal requirements
goes under the consent law, no room (II.). The formal transfer agreement
trolleys could, as is shown in the present case, contrary to the intentions of the
Senate ultimately lead to the political process in the context of the European
integration is not made possible and secured, but is narrowed and hindered
(III.). The constitutional complaint at issue was therefore lacking
to reject the complainant's right of gravity as inadmissible.
I.
1. In the judgment on the banking union, the Senate stated on the content of the “right to democracy
tie ”from Article 38.1 sentence 1 of the Basic Law (BVerfG, judgment of the
Second Senate of July 30, 2019 - 2 BvR 1685/14, 2 BvR 2631/14 -, marg. 91-94):
Article 38.1 sentence 1 of the Basic Law guarantees citizens
political self-determination and guarantees them free and
equal participation in the legitimation of those exercised in Germany
State authority (see BVerfGE 123, 267 <340>; 132, 195 <238
Marg. 104>; 135, 317 <399 marg. 159>; 142, 123 <190 marg. 126>; 146,
216 <249 f. Marg. 46>). This right equivalent to fundamental rights is exhausted
not in a formal legitimation of (federal) state authority,
but also conveys the individual a right to
their election decision influences political decision-making
take and make a difference. In the scope
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23 of the Basic Law protects citizens from the fact that the
legitimacy of state power caused by the election and the
flow on their exercise by shifting tasks
powers and powers of the German Bundestag on the Euro
The European Union is so drained that the principle of democracy is violated
(see BVerfGE 89, 155 <172>; 123, 267 <330>; 134, 366 <396
Marg. 51>; 142, 123 <173 f. Marg. 81>; 146, 216 <249 marg. 45>).
Article 38.1 sentence 1 of the Basic Law mediates citizens in
his by Art. 20 Para. 1 and Para. 2 in conjunction with Art. 79
3 GG protected core not only protection against a substantial
len erosion of the creative power of the German Bundestag,
but also a right to organs, institutions and
other bodies of the European Union only the responsibilities
exercise that have been assigned to them in accordance with Art. 23 GG
are (see BVerfGE 142, 123 <173 marg. 80 ff.>; 146, 216 <251
Marg. 50>). This right is violated when transferring
Sovereign rights or when implementing the integration program
The limits of Article 79.3 of the Basic Law are not observed (cf.
BVerfGE 123, 267 <353>; 126, 286 <302>; 133, 277 <316>; 134,
366 <382 marg. 22, 384 ff. 27 ff.>; 140, 317 <336 ff. Marg. 40 ff.>;
142, 123 <203 marg. 153>; 146, 216 <253 marg. 54>), or organs,
Institutions and other bodies of the European Union (within
half of the limits of Article 79.3 GG) take measures that
are not covered by the integration program (see BVerfGE 75, 223
<235, 242>; 89, 155 <188>; 123, 267 <353>; 126, 286 <302 ff.>;
134, 366 <382 ff. Marg. 23 ff.>; 142, 123 <203 marg. 153>; 146, 216
<252 f. Marg. 52 f.>). Article 38.1 sentence 1 of the Basic Law thus conveys one
“Right to democracy”, insofar as a process of democratic
basic principles are affected, Article 79.3 of the Basic Law also applies to
Withdraws access from the constitution-changing legislature, and
compared to obvious and structurally significant competence
exceedances by the European institutions (see BVerfGE 89,
155 <171>; 129, 124 <168>; 134, 366 <396 marg. 51>; 135, 317 <386
Marg. 125>; 142, 123 <219 marg. 185>).
The legislature must not require the federal government to
powerful, an ultra-vires act of organs, bodies and
other bodies of the European Union. To change-
if the democratic decision-making process that the
Art. 23 para. 1 in conjunction with Art. 20 para. 1 and para. 2 in conjunction
guarantee with Article 79.3 GG, undermine. The Parla
ment is obliged to submit a formal
transfer of competences in the context of European integration
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to decide so that the principle of limited individual powers
compliance is preserved (see BVerfGE 134, 366 <395 paragraph 48>). Art. 38
Paragraph 1 sentence 1 GG has obvious and structural towards
significant exceedances of competence by the European
Organs not only in terms of content, but also a procedural
Aqueous component. The citizen entitled to vote has security
its democratic influence in the process of European
integration right to have a relocation of ho-
rights only in the forms provided for in Art. 23
Paragraph 1 sentence 2 and sentence 3, Article 79 paragraph 2 of the Basic Law happens (cf.
BVerfGE 134, 366 <397 marg. 53>).
In addition, the constitutional organs meet on the basis of them
incumbent responsibility for integration an obligation,
institutions, bodies and other bodies of the EU
European Union, which cause an identity violation, as well as Ul-
tra vires files, even if they do not meet the requirements set out in Art. 23 para. 1
Sentence 3 in conjunction with Article 79.3 of the Basic Law
concern rich to oppose (see BVerfGE 142, 123 <20 f.
Marg. 163 ff.>). The Federal Government and the Bundestag have
to monitor the integration program and if obvious
structurally significant exceedances of competence
participation and implementation by bodies of the European Union
to refrain from acts of action and actively ensure compliance with the
Integration program (cf.BVerfGE 134, 366 <395
Marg. 49>; 142, 123 <209 f. Marg. 167>).
2. The formal transfer complaint now approved by the Senate goes beyond
previous statements by the Senate on Article 38.1 sentence 1 of the Basic Law and appear alongside
the complaint of identity and the ultra-vires complaint. Therefore, these complaints remain unaffected.
The novelty of the formal transfer complaint is that it also
compliance with the formal requirements for an effective transfer of sovereignty
rights to the European Union and to such intergovernmental institutions
conditions that are in a supplementary or other special proximity to the
Integration program of the European Union are available through one of the Bundestag
and the Federal Council passed the statutory transfer act pursuant to Article 23.1 of the Basic Law
detected. A law of consent to an international agreement that is
violated Article 23.1 in conjunction with Article 79.2 of the Basic Law, may
the exercise of official authority by the institutions, bodies and others
Bodies of the European Union or through one with it in a supplementary or
other special proximity relationship between intergovernmental institutions
legitimize and - according to the Senate - injure citizens in their
right equivalent to fundamental rights under Article 38 (1) sentence 1, Article 20 (1) and (2) in
Liaison with Article 79.3 GG. Subsequently, with the on Art. 38 para. 1 sentence 1
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8th
GG-supported constitutional complaint in the case of Article 23.1 sentence 2 of the Basic Law, for example
the absence of a federal law requiring approval and in the case of Art. 23
Sec. 1 sentence 3 GG the lack of a qualified majority according to Art. 79 sec. 2 GG
can be criticized (see marginal 98 of the decision). Since the Senate on the ineffective
of the transference law and thus the transfer of sovereignty,
this must also apply to any other formal deficiency in the legislative process
apply insofar as this leads to the ineffectiveness of the transfer act.
3. a) The formal transfer control leads to a further subjectification whether
jective constitutional law, namely the formal requirements for a transfer
sovereignty under Article 23.1 of the Basic Law. So far, the mediates in Art. 38
Paragraph 1 sentence 1 of the Basic Law anchored the “right to democracy” to the electorate
Electoral citizens with the possibility of having no further specific fundamental rights concern
the constitutional complaint adheres to the principles of the principle of democracy
according to Art. 79 Para. 3 GG on the control of the consent law for a
transfer of legal rights or to an international agreement from which
based on the essence of the principle of democracy. This
According to settled case law, it is already preventive, that is, before
the entry into force of the Transfer or Consent Act, if
the legislative procedure except for the copy by the Federal President
and the announcement has been completed (see only BVerfGE 123, 267 <329>; 132, 195
<234 f. Marg. 92>; 134, 366 <391 f. Marg. 34>; 142, 123 <177 marg. 91>). Such con
The judgments of the Maastricht and Lisbon treaties were some of the positions
(BVerfGE 89, 155 <171>; 123, 267 <329>) and the contract of February 2, 2012
establishing the European Stability Mechanism (hereinafter: ESM Agreement
wear; BVerfGE 135, 317 <384 f. Marg. 122>). Complaints are based on previous ones
Case law, however, only such loss of competence for the German Confederation
day, the price of the essential content of the principle of popular sovereignty
give threaten and thus affect the substance of the right to vote. Specifically went
in the procedures for the Maastricht and Lisbon Treaties primarily about the
Question as to whether the proposed transfer of sovereignty will empty the
Competencies of the Bundestag are threatening, either because of the abundance and / or
the weight of the transferred competences or because of any
quite anchored blanketter empowerments, which is an uncontrolled development
of the integration program contrary to the principle of limited individual powers
enable. It was another variant of the notice of emptying
in the judgments on the ESM contract. One of the complaints was the limits of Art. 79
Paragraph 3 of the Basic Law exceeds the impairment of the
general budgetary responsibility by agreeing to
Establishment of the European Stability Mechanism and the corresponding
sliding legislation.
b) Starting point for a subjective right to respect the principles of the
The principle of democracy as part of the constitutional identity is the right to vote in
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Article 38.1 sentence 1 of the Basic Law, for the first time in the judgment on the Maastricht Treaty
The salary was attributed (see BVerfGE 89, 155 <171 f.>). requirement for
The admissibility of the constitutional complaints was and is therefore - also and
de regarding complaints relating to the impairment of other state structures
related issues such as the rule of law or the welfare state - logically the
Explanation of the necessary connection to that via Article 38.1 sentence 1 of the Basic Law
immediately compliant principle of democracy. This is particularly clear
reference to the democratic scope of the legislature in the
Lisbon judgment, if carried out there (BVerfGE 123, 267 <332 f.>):
As far as the complainants (...) on the basis of Art. 38
Paragraph 1 sentence 1 GG the violation of other principles of state structure
complaints, the constitutional complaints are only with regard to
the alleged violation of the welfare state principle is permissible.
The complainants (...) provide the necessary compilation
according to Article 38.1 sentence 1 of the Basic Law
Principle of democracy, by stating with sufficient certainty
that the democratic design options of German
Bundestag in the field of social policy through the responsible
of the European Union after the Lisbon Treaty
would be restricted to the fact that the German Bundestag is made up of
Article 23.1 sentence 3 in conjunction with Article 79.3 of the Basic Law
no longer meet the requirements of the welfare state principle
could.
As far as the complainants (...) violated the legal
state principle and the principle of separation of powers,
they do not show a comparable connection. The Ver-
In this respect, grievance complaints are inadmissible.
c) The rulings on the Maastricht and Lisbon Treaties were the real thing
as well as the European Stability Mechanism about the compatibility of the respective
consent laws with the material core content of the right to vote, as set out in
Article 38.1 sentence 1 in conjunction with Article 1.1 and Article 79.3 of the Basic Law are protected
is. Subject of the constitutional review of the consent laws
was in particular the question of whether the transfer of sovereignty
rights to the European Union or those with the ESM Treaty
restricting Parliament's budgetary sovereignty to emptying
of the tasks and powers of the Bundestag and thus to a violation of the
leads to the absolutely protected core of the principle of democracy in Article 79.3 of the Basic Law . One
such emptying, which can take place in different constellations,
the voters should be based on the principles set out in Article 38.1 sentence 1 of the Basic Law.
countering the “claim to democracy” with the constitutional complaint
may (cf.BVerfGE 129, 124 <169 f.>). This is examined by the Federal Constitutional Court
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11
within the framework of identity control (see marginal 96, 136 of the decision).
4. a) Protection against the loss of autonomous democratic power
is also the central content of the ultra-vires based on Article 38.1 sentence 1 GG
Complaint, which is about the voters before exercising a sovereign
to protect violence that they cannot legitimize and influence (see BVerfGE
142, 123 <189 marg. 123; 194 marg. 135>). Have identity complaint and ultra-vires reprimand
insofar as the same constitutional root, namely that in Art. 38 para. 1 sentence 1,
20 sec. 1 and sec. 2 in conjunction with Art. 79 sec. 3 GG "Claim
on democracy ”(see BVerfG, judgment of the Second Senate of July 30, 2019 - 2 BvR
1685/14, 2 BvR 2631/14 -, marg. 205). Ultra vires control on the one hand and identity
control, on the other hand, has a different approach to testing
underlying. So the subject of ultra-vires control is whether the actions of the organs,
Institutions and other bodies of the European Union and of a
supplementary or other special proximity to the European Union
intergovernmental bodies in accordance with the provisions of the Consent Act
23 of the Basic Law contained in the integration program
or the measures from the one specified by the parliamentary legislature
Break out frame (see BVerfGE 89, 155 <188>; 123, 267 <353>; 126, 286
<302 ff.>; 134, 366 <382 ff. Marg. 23 ff.>; 142, 123 <198 ff. Marg. 143 ff.>), While the
Identity control does not ensure compliance with the scope of the transferred responsibilities
concerns, but the "absolute limit" of Article 79.3 of the Basic Law (see BVerfGE 123,
267 <343, 348>; 134, 366 <386 marg. 29>; 142, 123 <203 marg. 153>; BVerfG, judgment of the
Second Senate of July 30, 2019 - 2 BvR 1685/14, 2 BvR 2631/14 -, marg. 204). The
Eligible voters should use the constitution based on Article 38.1 sentence 1 of the Basic Law.
a complaint against unauthorized use of sovereignty
able to defend themselves through supranational organs.
b) In this context alone, the Senate has repeatedly
toned procedural component of the ultra-vires control (cf. BVerfGE 134,
366 <397 marg. 53>; 142, 123 <174 marg. 82; 193 marg. 134>; 146, 216 <251 marg. 50>;
BVerfG, judgment of the Second Senate of July 30, 2019 - 2 BvR 1685/14, 2 BvR 2631 /
14 -, marg. 93). Afterwards, the citizens entitled to vote have
securing their democratic influence in the process of European integration
38 Art. 1 Paragraph 1 Sentence 1 of the Basic Law "Basically a right that a contract
Storage of sovereign rights only in the forms provided for in Art. 23
Paragraph 1 sentences 2 and 3, Article 79 paragraph 2 of the Basic Law happens. The democratic decision
process that these regulations, in addition to the required certainty of the
guaranteeing sovereignty (...) is guaranteed in the event of an arbitrary
Presence of authority of organs and other bodies of the European Union
undermine ”(BVerfGE 134, 366 <397 paragraph 53>). With an “arbitrary authority
according to constellations in which organs, institutions
or other bodies of the European Union with their actions
the powers conferred by the consent law in obvious and structured
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rell significantly exceed and thereby depart from the principle of limited
Remove single authorization. In contrast, such were not previously included
Constellations in which the German consent law according to Article 23.1 GG
for formal reasons, such as the failure to meet the required two-thirds
Majority, void and a transfer of sovereign rights would be ineffective.
The Senate now speaks of ultra-vires files (see marg. 97, 99 and
133 of the decision), which should be prevented.
5. In the judgment on the European Stability Mechanism, the Senate
clarified misleading words that “Art. 79 sec. 2 GG - also in conjunction
with Article 23.1 sentence 3 of the Basic Law - a rule of objective constitutional law
which affects the formation of wills within the Bundestag and the Bundesrat.
It provides the electorate (...) - apart from the cases of an ultra-vi-
res constellation (see BVerfGE 134, 366 <383 f. marginal 25>) - no rights because of the
Extent of decision-making powers of the Bundestag, hence the substance of the
Right to vote, does not depend on the majority with which the Bundestag
conclusions ”(BVerfGE 135, 317 <386 f. margin no. 129>). Both the reference to the
OMT submission in the 134th volume, which is an ultra vires constellation in the sense of
concerned an obvious and structurally significant exceedance of competence,
as well as the rationale for the need for ultra vires control, namely
checking compliance with the limits of compe
limits (see e.g. BVerfGE 142, 123 <198 marginal no. 143>), suggest that the
Reservation does not refer to a constellation as is at issue here.
The Senate, on the other hand, is facing this - with reference to the express prior
stop for ultra-vires constellations (BVerfGE 135, 317 <387 f. marg. 129>) - in conti-
Nuance to the previous case law in cases of the transfer of sovereign rights
(see paragraph 99 of the decision). For other threats to constitutional identity,
such as those underlying the judgments on the European Stability Mechanism
agen and which can also be criticized under Article 38.1 sentence 1 GG, would remain
However, it then happens that the formal complaint has not been opened
Article 79.2 in conjunction with Article 23.1 sentence 3 of the Basic Law is a rule of the objective
Constitutes constitutional law that does not affect the substance of the right to vote. After
In his view, the Senate's argument goes in favor of one
(repeated) extension of the right to appeal under Article 38.1 sentence 1 of the Basic Law
from the clear statement in the judgment on the European Stability Mechanism
(BVerfGE 135, 317) on the complaint of the lack of a two-thirds majority, for
however, keeping them speaks the better reasons.
II.
1. a) The extension of the
The right to democratic self-determination under Article 38.1 sentence 1 of the Basic Law is misjudged
its material substance and thus breaks the inherent limits of the pre
font. Because this right should also be affected in constellations in which it
the German Bundestag in particular about establishing democratic legitimation
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for a generally permissible transfer of sovereign rights by law,
hence the German Bundestag, the responsibility for integration in the
Framework of a democratic process - even if it may be formally
learning - perceived. With the extension of the
"Right to democracy" on compliance with the formal requirements for
the effectiveness of a transfer of sovereignty loses this entitlement
specific material sub-areas aimed at maintaining democratic self-determination
stamped as protected by identity and ultra-vires control. Because
A "right to democracy" "mediates Article 38.1 sentence 1 GG beyond
Ultra-vires constellations (...) only to the extent that they are democratic through a process
Principles are affected, Article 79.3 GG also the access of the constitutional
legislature amending (...) ”(BVerfGE 135, 317 <386 paragraph 125>).
Failure to comply with the requirement of constitutional majorities or
the formal requirements for the transfer of sovereign rights do not apply
under the previously recognized Ultra-vires constellations, nor does it mean that in
Article 79.3 of the Basic Law of the democratic principle, which is subject to change, is affected. in the
The result of the approval of the formal transfer complaint means that the protective
area of ​​Article 38.1 sentence 1 of the Basic Law in the context of European integration
Contours completely lost.
b) This does not change the fact that the Senate now assumes Article 38 Paragraph 1
Sentence 1 GG is - unlike constitutional changes - in the transfer of
Sovereignty is always affected in its substance protected by Article 79.3 GG
fen (see para. 97 of the decision), and it follows that their formal effectiveness
of the constitutional judge's test report based on Article 38.1 sentence 1 GG
gram must be subject. In our opinion, the right to vote is not for everyone
Transfer of sovereignty in its material protection protected by Article 79.3 of the Basic Law
Substance - the change-proof principles of the demo-cryptic principle - touched,
on which the Senate also expressly relies on the discovery of an injury
(see marginal 134, 138 of the decision). Because with the protected by Art. 79 sec. 3 GG
The substance of the right to vote is about giving the German Bundestag a
sufficient democratic scope to maintain, which according to the previous
case law either by emptying the tasks and powers
of the Bundestag due to excessive sovereign powers transfers
Blanketter authorizations, through the establishment of liabilities that
it is impossible to assume overall responsibility for the household
Chen, or is threatened by Ultra Vires files. In all of these cases there is -
than if the formal requirements for a transfer are not met
or consent law according to Art. 23 Abs. 1 Clause 2 and Clause 3 GG
- the risk of undermining or undermining the democratic process, and
voters are subjected to sovereignty that they do not legitimize
and on which they cannot influence in freedom and equality (cf.
BVerfGE 142, 123 <194 marg. 135>).
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c) Furthermore, non-compliance with democratic procedural and additional
safety rules - and their isolated enforcement is part of the
Mellen transfer complaint - in the course of parliamentary participation, the substance
of the right to vote simply because the "right to democracy"
in principle not to be turned against the democratic process as such
can. Otherwise, the right under Article 38.1 sentence 1 of the Basic Law changed into an application
Every electoral citizen speaks to one about securing
general legality control going beyond democratic processes
critical majority decisions. At the risk of everyone
Eligible voters have the door to a general rule on Article 38.1 sentence 1 of the Basic Law.
Opening the law enforcement claim has already been pointed out elsewhere.
den (see BVerfGE 134, 366, 430 <432 para. 138>, special vote of the judge Ger-
hardt, based on the admission of an alleged violation of
38 Para. 1 GG-based ultra-vires control). With the new expansion
the possibility of complaining about the disregard of formal requirements for the
Transfer or consent law on Article 38 paragraph 1 sentence 1 GG
the Senate has opened this door again. Which in practice
right to a general legality check of laws
However, for that reason alone cannot be derived from Article 38.1 sentence 1 of the Basic Law because
this provision - as the Senate has repeatedly stated - only to enable
but does not serve to control the content of democratic processes (see BVerfGE
129, 124 <168>; 134, 366 <396 f. Marg. 52>; 142, 123 <190 marg. 126>; 146, 216 <249 f.
Marg. 46>; BVerfG, judgment of the Second Senate of July 30, 2019 - 2 BvR 1685/14, 2
BvR 2631/14 -, marg. 118). As a fundamental right to participate in the democratic
Autonomy of the people therefore does not fundamentally confer Article 38.1 GG
power of attorney against parliamentary decisions, especially legislative decisions
(see BVerfGE 129, 124 <168>; 142, 123 <190 marginal 126>; 146, 216 <250 marginal 46>;
BVerfG, judgment of the Second Senate of July 30, 2019 - 2 BvR 1685/14, 2 BvR 2631 /
14 -, marg. 118). This must go beyond the protection enshrined in Article 79.3 of the Basic Law
the principles of the principle of democracy - also for transmission or
Approval laws in the context of the European integration process apply.
d) The necessary connection to the core of the principle of democracy and thus to the “
claim to democracy ”from Article 38.1 sentence 1 of the Basic Law cannot be
be produced wisely, no electorate and no electorate
exposed to national sovereignty on a
formally
unconstitutional and thus ineffective transfer act. But this is
a key argument of the Senate for the formal complaint: it aims to
that the necessary democratic legitimation is lacking if the transfer
law is formally unconstitutional and ineffective and consequently the exercise
the delegated sovereignty cannot bear (see marg. 133 and 137 of the
conclusion). This recital clarifies that formal transfer
no longer control the protection of the substance of the right to vote against “disempowerment”
of the German Bundestag, but about a general legality
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control. Because the lack of a democratic context of legitimacy
follows the ineffectiveness of the transfer of sovereignty for formal reasons
is not a substantial threat to the democratic process itself, one
Violation of the corresponding "right to democracy"
could see (see also 2. a). For one brought about via Article 38.1 sentence 1 GG
Intervention by the Federal Constitutional Court to protect precisely that democratic
tical process is therefore no space.
2. a) The right to vote is not therefore also in his by Art. 79 Para. 3 GG
protected substance affected because of a transfer of sovereign rights to a
other subject of international law such as the European Union or to one with it in a
a supplementary or other special proximity relationship
state institution competencies are usually "lost" and - other than
in the case of a constitutional amendment - "not simply 'back-and-forth on its own
could be 'caught' (see marginal 97 and 137 of the decision). The fact that
no such structural changes in the structure of the state organization law
The Senate believes that more can be removed without further ado that
preventive - eligible voters have the option to lodge a complaint under Art. 38
1 sentence 1 GG must be granted. This should be the central motive of the
nat for a comprehensive formal and material control, with other words
general legality control, namely in the domestic area
With reference to parliamentary and especially legislative decisions
reject them, but now for comparable decisions within the framework of the European
allow integration process and thus a "special right" for this
creating rich. For what reason, from this point of view
Affection of the substance of the right to vote in the sense outlined above and from this
below the need for formal transfer control at all sovereign
transfers of rights in the context of European integration (Article 23.1 GG)
in contrast to identity and ultra-vires control -
but not. Because it is about ensuring compliance with the formal requirements
suspensions of Article 23.1 sentence 2 and sentence 3 of the Basic Law neither for the possibility
to keep an otherwise endangered or even prevented demo
cratic process. The present case illustrates this: The German Bundestag
has carried out a legislative procedure, he has competences in transferable
area, ie within the limits of Article 79.3 of the Basic Law. His
Decision-making powers are also not exercised against or without his will
diminishes, the integration program he accepts is made uniform
Patent court in the event of the entry into force of the Agreement on a Single Pa
tent court not exceeded.
b) The concern of the Senate is understandable. If the transfer
acts later than formally unconstitutional and therefore ineffective are countless
Measures taken by the authority of the delegated sovereignty in the absence of necessary
to classify legal consent in the Senate diction as an ultra-vires file (cf.
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Marg. 97, 99 and 133 of the decision). Avoiding such a situation
the formal transfer control should serve. It is also true that the
effectiveness of the national transfer act, the existence of a
supranational acts established under an international or Union law act
Institution is not affected with the consequence that supranational ho-
violence within the framework of the existing integration program
can. The German (integration) legislator can, however, remedy this himself
create by enacting a formally constitutional transfer law. The
Possibility of eliminating the procedural error and thus the constitutional
abrupt (exercise of sovereignty without a legal basis) is therefore in the
domestic area. Such a remedure is available to the legislator in the case of
a breach of identity or an ultra-vires is not available
in the case of identity violation not because the legislature is beyond
Constitutional identity protected under Article 79.3 of the Basic Law
not, and in the case of the conventional Ultra vires violation,
because the obvious and structurally significant exceedance of competence through
Union or treaty organs (and the resulting violation of the constitution)
cannot be eliminated through unilateral action by the responsible constitutional organs
that can. Is the two-thirds majority required in the case of Article 23.1 sentence 3 of the Basic Law
The constitutional organs cannot be reached in the Bundestag and Bundesrat.
hold their integration responsibility with the aim of resolving the opposition
saying between international / Union law and constitutional law
May perceive and eliminate the violation of the constitution in this way.
3. Otherwise stand for the assertion of formal unconstitutionality
the Act of Consent to the Convention on a Unified Patent Court
Possibilities open even after its entry into force. So much for enforcement
the decisions of the Unified Patent Court, which are in accordance with
Art. 82 EPCC, according to the national law of the respective member state,
there is the possibility of legal protection against the national enforcement measures
took before the specialized courts. In these procedures, the formal
unconstitutional of the consent law are to be reprimanded as a prerequisite for
the validity and enforceability of judgments of the Unified Patent Court in
Germany the effectiveness of the consent law and thus the sovereign
transfer of rights is. A constitutional review of the consent
In this respect, the law could be followed both by means of a concrete control of standards
Art. 100 sec. 1 GG as well as against a court of last resort
Constitutional complaint can be reached. But is always - different from
in the event of a complaint about the violation of the “right to democracy” from Art. 38 Para. 1
Sentence 1 GG - requirement that the plaintiff or complainant
by the contested measure in a specific case specifically affected by a fundamental right
fen, for example, defends itself against enforcement measures. So far
in these cases it concerns a specific fundamental rights concern.
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III.
It is expected that the wide opening of access to the federal constitution
magistrate court on enabling formal transfer control at so good
like any transfer of competences in the area of ​​application of Article 23.1 GG
German Bundestag and the Bundesrat will cause a two-
A third majority strive to be on the "safe side" and face the risks
not subject to formal transfer control. The need for a different
In fact, the majority that changes the constitution does not only become the rule for sovereign
transfers of rights to organs, bodies or other bodies of the European
Union, but also to all institutions that are based on international agreements
stand in a supplementary or other special close relationship with her. This
is neither in the intent of the constitutional giver, which the Federal Republic of Germany
country in Article 23.1 sentence 1 GG to participate in the European integration pro
zess obligates and the constitutional regulation accordingly for
has opened the exercise of supranational sovereignty, nor is it
clearing the democratic process protected in Art. 20 sec. 1 and sec. 2 GG
required or even beneficial, because it must also be possible to run short
Majorities to decide. The broad opening of access to the federal constitution
In the future, the judge on the Article 38.1 sentence 1 of the Basic Law could undermine the democratic
Process in the Bundestag and Bundesrat problematically prejudice and
further integration steps, if not prevent, will be delayed considerably.
By including intergovernmental bodies that
Union in a supplementary or other special proximity relationship
hen, in Article 23.1 of the Basic Law and a rather broad understanding of Article 23.1
Sentence 3 GG the scope of the requirement of a two-thirds more
significantly expanded into an area that previously belonged to Article 24.1 GG
was arranged. This only requires a simple one for the transfer of sovereign rights
Federal law.
We want a broad understanding of the scope of Art. 23
1 GG against the background of the development of the European integration pro
due to the growing scope of European
do not generally close the Union. Nevertheless, we would like to consider
given that considering the approval of formal transfer control
the valuation-dependent and in many cases ambiguous differentiation from
Art. 23 para. 1 sentence 2 and sentence 3 GG another field of constitutional court
disputes opened. This will result in the necessary political
The scope of parliament in the process of European integration
contrary to the intentions of the constitutional legislature and
The intended protection of democratic democracy in Article 38.1 sentence 1 of the Basic Law
Process could be the opposite.
king
Maidowski
Langenfeld
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Federal Constitutional Court, decision of the Second Senate of February 13, 2020 -
2 BvR 739/17
Proposed citation BVerfG, decision of the Second Senate of February 13, 2020 -
2 BvR 739/17 - marg. (1 - 21), http://www.bverfg.de/e/
rs20200213_2bvr073917.html
ECLI
ECLI: DE: BVerfG: 2020: rs20200213.2bvr073917
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Texte d'origine