Brexit Briefing February 2019

Jane Lambert

This is the last Brexit Briefing before the two-year notice period provided by art 50 (3) of the Treaty on European Union runs out. We still do not know whether the UK will leave the EU on 29 March 2019, and, if it does leave, whether it will leave with or without the withdrawal agreement that the Commission and a departing state are supposed to negotiate and conclude by art 50 (2).

If Parliament approves the draft agreement of 14 Nov 2018 before the 29 March, EU law will continue to apply to the UK until 31 Dec 2020,  The agreement and the accompanying political declaration contain a number of provisions on IP which I discussed in  The Intellectual Property Provisions of the Draft Withdrawal Agreement 19 Nov 2018 and in my presentation to Sheffield Business and IP Centre on 6 March 2019. They will be implemented by a number of draft statutory instruments which I listed on slide 31 of that presentation.

If the government loses the forthcoming vote on the draft withdrawal agreement next week, it is possible (though perhaps not particularly likely) that Parliament will vote for an extension of the notice period or even revocation of the notification of the 29 March 2017.  An extension would have to be agreed by the remaining member states in accordance with art 50 (3) and they would have to be persuaded that there is a good reason to do so such as a second referendum which could lead to revocation of the notification. Should that happen there will be no change to our law at least until the extended notice period runs out.

The last possibility (and an increasingly likely one) is that time will run out without an extension or draft withdrawal agreement.  Were that to happen, legislation derived from EU directives will be saved by s.2  of the European Union (Withdrawal) Act 2018 and EU regulations would be incorporated into national law by s.3 mutatis mutandis pursuant to s.8.  The statutory instruments listed in slide 31 would then take effect from 23:00 on 29 March 2019.  Of course, there would be lots of other issues. The Senior Courts and their equivalents in Scotland and Northern Ireland would cease to EU trade mark and Community design courts and Regulation (EU) No 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters would cease to apply to the UK.

As I noted in my article of 19 Nov 2018, both the draft withdrawal agreement and the political declaration are silent on British participation in the Unified Patent Court. The government argues that the agreement to set up the Court is an international treaty outside the EU legal order and that the UK could remain a party to the agreement even if it leaves the EU without a withdrawal agreement.  For the reasons set out in my presentation, I regard that argument as unrealistic.

Anyone wishing to discuss this article or brexit and intellectual property, in particular, should call me on 020 7404 5252 during office hours or send me a message through my contact page.