German Constitutional Court Rejects Preliminary Injunctions in UPC Case

As published today, in a long-awaited order issued on 23 June 2021, the German Federal Constitutional Court (“Bundesverfassungsgericht”) rejected two applications for a preliminary injunction filed together with the constitutional complaints against the German ratification law for the UPC Agreement.

In Germany, the signature of the Federal President and publication in the Federal Law Gazette are required for entry into force of the law. The Federal President had declared to the Federal Constitutional Court that he was prepared neither to issue nor to promulgate the ratification law pending the decision of the Federal Constitutional Court on the applications for a preliminary injunction. It therefore seems that with the rejection of these applications by the German Federal Constitutional Court, the way is free for the Federal President to sign the ratification law, including the Protocol on Provisional Application (PPA).

In Germany, the first laws for ratification passed the Parliament in March 2017. Upon a previous complaint regarding the constitutionality of this law, the German Federal Constitutional Court had already once requested the Federal President to postpone its issuance. The Federal Constitutional Court decided on 13 February 2020 that the complaint was admissible and well-founded to the extent that it alleged an infringement of the requirement of a qualified majority for the ratification law under the German Constitution. The ratification law had not been adopted with the required consent of two thirds of the members of the Bundestag. The Federal Constitutional Court found the further grounds for the complaint inadmissible.

The Bundestag (lower house of the German Parliament) approved the new ratification law with the required two-thirds majority on 26 November 2020. The Bundesrat (upper house of the German Parliament) gave its approval on 18 December 2020. On the same day, two new constitutional complaints were filed with the Federal Constitutional Court, upon whose request the Federal President again postponed signing the ratification law.

These complaints included applications for preliminary injunctions. With its order of 23 June 2021, the Federal Constitutional Court addressed and rejected these applications. It decided that the applications for a preliminary injunction had to be dismissed because the constitutional complaints were inadmissible on the merits. This applied insofar as the complainants alleged a violation of the principle of the rule of law, of the fundamental right to effective legal protection or violations of Union law, and insofar as one of the complainants regarded Art. 20 UPC Agreement as an inadmissible interference with the constitutional identity protected by Art. 79 (3) of the German Constitution.

With this important decision, the ratification process for the UPC Agreement and its Protocol on Provisional Application can finally continue.

An English press release by the German Constitutional Court can be found here. The entire decision (in German) can be found here.