This post should be read in conjunction with Retained EU Law (Revocation and Reform) Bill, my first, second and third updates on the legislation and How Brexit has changed IP Law. We are now in the sunset period and the legislation in Schedule 1 of the Rerailed EU (Revocation and Reform) Act 2023 is no longer part of our law. This repeal is nothing like as extensive as the revocation of all EU-derived subordinate legislation and retained direct EU legislation as originally intended but it is still substantial. The retained EU law that has not been revoked is now known as "assimilated law" by virtue of s.5 (1) of the Act.
In Retained EU Law (Revocation and Reform) Bill I warned:
"This bill, if passed, is likely to affect intellectual property law in the United Kingdom because much of that law implements EU legislation and case law."
Because of amendments to the Bill as it passed through Parliament the effect on intellectual property has been much more limited than I had feared. Of the 86 items of retained EU law that the Intellectual Property Office has identified, only 8 have been included in Schedule 1 of the Act. These are highlighted in grey in the IPO's guidance Retained EU law for Intellectual Property which it updated on 1 Jan 2024. In Intellectual property and Retained European Union Law: the facts those instruments were described as "either inoperable, superseded by other domestic legislation or were no longer relevant." The guidance adds that their revocation has not altered the policy effect of IP law.
The legislation in Retained EU law for Intellectual Property that is not highlighted survives as assimilated law. However, its interpretation is affected by s.3 which abolishes the supremacy of EU law, s.4 which abolishes general principles of EU law and s.6 on the role of the courts.
Judgments of the Court of Justice of the European Union ("the CJEU") and the General Court before 31 Dec 2020 are now known as "assimilated case law" pursuant to s.5 (1). The Court of Appeal and certain other courts in the UK and its component nations had the power to depart from the judgments of the CJEU and General Court under the European Union (Withdrawal) Act 2018 as amended. The Court of Appeal's decision in ) Industrial Cleaning Equipment (Southampton) Ltd v Intelligent Cleaning Equipment Holdings Co Ltd and another [2023] EWCA Civ 1451 (6 Dec 2023) which I discussed in Trade Marks - Industrial Cleaning Equipment (Southampton) Ltd. v Intelligent Cleaning Equipment Holdings Co. Ltd. and another on 4 Jan 2024 in NIPC Law is an example of the use of that power. The 2023 Act should make it easier for the courts of this country to depart from assimilated case law in the future.
This will be the last of my updates on the Retained EU (Revocation and Reform) Act 2023 as the Act is now in force and fully implemented. Anyone wishing to discuss the legislation can call me on 020 7404 5252 during office hours or send me a message through my contact form.
