The question that is not clear is whether the UK`s filing of the payment notification is sufficient or whether further steps are needed to ensure the effectiveness of the payment. The UPC agreement provides that ratification instruments should be lodged with the General Secretariat of the Council of the EU (i.e.dem Council secretariat), but although notification to the Council secretariat (through a verbal note) may be sufficient to withdraw ratification, the agreement does not contain withdrawal provisions. The Vienna Convention on Treaty Law provides for mechanisms for withdrawing a treaty that does not contain withdrawal provisions, but only if it is applied on an interim basis (Article 25) or is in force (Articles 54 and 56); it appears that, under Article 25, the UK`s withdrawal could be effective if States agree to apply part of the agreement on an interim basis and the United Kingdom then informs the other States that it has no intention of becoming a party to the agreement. With regard to the provisional application of the agreement, there is another issue: Article 3 of the AEA requires the UK`s agreement on provisional application. Therefore, it was considered that the United Kingdom would not withdraw its ratification of the agreement and its approval of the provisional application (when the other states decided to continue with the UPC) once the provisional application had begun, but it now appears that a protocol amending the AEA will be required. Today, the United Kingdom of Great Britain and Northern Ireland with the help of a verbal note withdrew the ratification of the Unified Court Convention on the patent and protocol on the privileges and immunities of the United Patent Jurisdiction (April 23, 2018) for the United Kingdom of Great Britain and Northern Ireland and the Isle of Man. , and its agreement on limiting the protocol to the agreement on a unified jurisdiction on provisional application (together “agreements”) (the “agreements”). If, following the results of its consultation (reported here), the German government decides to adopt the bill allowing it to ratify the UPC agreement, it is important to guarantee the legal effectiveness of the United Kingdom, as this would eliminate a constitutional complaint ground threatened by the FFII (reported here), i.e. that Germany is not in a position to ratify an agreement that has been ratified by a third country.
Although the European Commission has stated, as reported here, that Germany would still have the right to ratify (the opinion of the Council of the EU is expected), the Commission`s non-binding opinion should not, on its own, be included as grounds for a constitutional appeal, as well as other possible grounds based on the incompatibility of the UPC agreement with the German Fundamental Law.