The course of the UPC never did run smooth: the UK officially withdraws its participation

In what has felt like death by a thousand cuts, the UK has officially withdrawn its ratification of the UPC Agreement.  For our earlier posts on the saga, see our blog posts here and here.    

The written statement made by IP Minister Amanda Solloway to the House of Commons on 20 July 2020 is available here.  In it, she states that by Note Verbale the UK has withdrawn its ratification of the Agreement on a Unified Patent Court and the Protocol on Privileges and Immunities of the Unified Patent Court (dated 23 April 2018) and withdrawn its consent to be bound by the Protocol to the Agreement on a Unified Patent Court on provisional application (dated on 6 July 2017) (collectively 'the Agreements').  The UPC Preparatory Committee confirmed that its Council Secretariat has received a deposit of the withdrawal notification of ratification of the Agreement on the UPC by the UK.

Ms Solloway's statement repeats the rationale for withdrawal (which she also provided back in March 2020 see here).  Namely, ‘In view of the United Kingdom’s withdrawal from the European Union … participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the Government’s aims of becoming an independent self-governing nation’.

Why now?  As we know, the Agreements have not yet entered into force as Germany’s ratification has stalled (as to which see our blog post). However, Ms Solloway states that the UK withdrew its ratifications of the Agreements now so as to ensure clarity regarding the UK’s status and to facilitate their orderly entry into force for other States without the participation of the UK.  Finally, she stated that the UK considers that its withdrawals shall take effect immediately and that it will be for the remaining participating states to decide the future of the UPC system.

So now what?  

Whilst the Agreements address the process for ratification, they do not provide provisions for withdrawal.   The Agreements may need to be amended to allow withdrawal of the ratification by the UK.  Notification to the General Secretariat of the Council of the EU may also be adequate in accordance with Article 25 of the Vienna Convention on the Law of Treaties 1969.   

We should not forget about what all this might mean for Germany, whose previous ratification was found to be unconstitutional due to a lack of quorum (see our previous blog post).  Although Germany seems keen to properly ratify the treaty in its current form – a draft proposal has been submitted by the German Ministry of Justice and Consumer Protection which seeks to remedy the void ratification -  will this be possible now?  It has been argued by MEP Patrick Breyer that it is not possible for Germany to ratify an agreement already been ratified by a non-EU state on the basis such action in incompatible with the Treaty on the Functioning of the European Union, the Agreements and German law.  To this, the European Commission has suggested that the UK’s withdrawal from the EU does not affect the ratification process of the Agreements in Germany.  The European Commission’s response to Mr Breyer is available here.  

Whilst it’s the end of the road for the UK and the UPC, it appears the UK’s withdrawal may have caused a whole new can of worms.

Thank you very much to Cara Lovell Young for her research in preparing this post.