The Agreement on the Unified Patent Court (UPCA) has been ratified by 15 Member States and the United Kingdom, but will not come into force until it has been ratified by Germany. According to EU case law (Court of Justice of the European Union Case 22/70), Member States must not enter into agreements with third countries that affect EU rules or alter their scope. The UK is now considered a ‘third country’ under Article 216 of the Treaty on the Functioning of the European Union. While the EU may jointly assume obligations with the UK with respect to patent litigation, Member States no longer have a right to do so.

1. Can the Commission confirm that Germany no longer has the right to ratify the UPCA?

2. Is the Commission going to advise the German Government not to ratify the UPCA as it stands?

3. If Germany ratified the UPCA in its existing form, would the Commission launch an infringement procedure against it?