Brexit Briefing - November 2018

Author O Flammger
Source Wikipedia Palace of Westminster

Jane Lambert

Negotiators from the United Kingdom and the European Union have agreed the text of a withdrawal agreement in accordance with art 50 (2) of the Treaty on European Union and a political declaration setting out the framework for the future relationship between the EU and the UK. That agreement has been approved by the governments of the member states at a special meeting of the European Council on 25 Nov 2018.

The draft withdrawal agreement provides for an implementation or transition period starting on 29 March 2019 and continuing until at least 31 Dec 2020 during which time the British government will try to negotiate a long-term agreement with the European Union on the lines of the political declaration. During that period, EU law will continue to apply to the UK although it will cease to be a member on 29 March 2019 and will have no representation in the Council or in any of the EU institutions after that date.

The draft agreement will avoid disruption of trade but it will leave the UK as a rule-taker rather a rule-maker during the implementation period. More importantly, it may require the UK to remain in regulatory alignment with the EU even after the end of that period until both sides agree otherwise to ensure an open border with the Republic of Ireland.

This draft is being debated by both Houses of Parliament as I write this briefing and it has already prompted several ministerial resignations.  It is opposed by almost all the opposition parties and by many Conservative MPs on both sides of the Brexit debate.  Though nothing is impossible in present circumstances, most commentators think it unlikely that it will be approved by either House.

The Prime Minister has warned that the alternatives to the draft agreement are an exit from the EU without any implementation period which could be very disruptive to business and the general public or maybe no Brexit at all. In that regard, the Court of Justice of the European Union is hearing a case that has been referred to it by the Court of Session under art 267 of the Treaty on the Functioning of the European Union,  The case has been brought by Andy Wightman and others against the Secretary State for Exiting the European Union on whether the British government can unilaterally withdraw its notice of intention to leave the EU. The Advocate-General has opined that it can on certain specified conditions (see Case 621/18 Wightman and others v Secretary of State for Exiting the European Union EU:C:2018:978, ECLI:EU:C:2018:978, [2018] EUECJ C-621/18_O). The full Court is expected to deliver its decision on Monday 10 Dec 2018.

Whether we leave the EU with an agreement or not, it is clear that Community designs and plant varieties and EU trade marks will be converted into British ones, that we shall have a British system of geographical indications very much like the EU system and a supplemental unregistered design right that will be similar to unregistered Community designs,  Of course, none of that will be necessary if we remain in the EU. If we stay in the EU or even exit on the terms of the draft withdrawal agreement there is an outside chance that the Unified Patent Court and unitary patent will come into being and that we will participate in them.  It is highly unlikely that will happen if we leave without agreement.

The British government ratified the United Patent Cout agreement on 26 April 2018 and the Minister with responsibility for Intellectual Property who deposited the instrument of ratification was Sam Gyimh MP. Mr Gyimak is one of the ministers who was felt obliged to resign over the terms of the draft agreement as did his predecessor in the role Mr Jo Johnson MP.  Both were good ministers and it is sad to see them go.

Even though there are just a few weeks to go before the 29 March 2019 the best advice I can offer my clients is prepare for the worse and hope for the best.  Anyone wishing to discuss this article or Brexit generally should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page,  I wish all my readers a Merry Christmas and a happy New Year.