Operation Yellowhammer

Yellowhammer

Author Andreas Trepte

Licence CC BY-SA 2.5

Source Wikipedia Yellowhammer

Jane Lambert

Operation Yellowhammer is the code name for the UK government's contingency planning in the event of a no-deal brexit.   It is also the title of a short document headed "Operation Yellowhammer" setting out the British government's worse case planning assumptions as of 2 Aug 2019.  It was published pursuant to a Humble Address to the executive made on 9 Sept 2019.

The paper addresses the following risk areas:

• Transport systems
• People crossing borders
• Key goods crossing borders
• Healthcare services
• UK energy and other critical systems
• UK food and water supplies
• UK Nationals in the EU
• Law enforcement implications
• Banking and finance industry services
• Brexit and the Irish border
• Specific risks to overseas territories and Crown dependencies (including the effect of Brexit on Gibraltar), and
• National Security.

The basic assumption is that the EU will be "as a whole unsympathetic" and that public and business preparedness will be at a low level owing (among other things to "brexit fatigue" following two previous extensions to the art 50 (2) notice period.

It is important to stress that this blog is not a campaign document. Its purpose is to alert clients and others to the factors that need to be taken into account when planning their investments and expenditure over the next few months.   Should anyone wish to discuss this article or brexit generally, call 020 7404 5352 during office hours or send me a message through my contact form.

Practical advice on preparations for No deal from the CBI and IfG

Dover Harbour

Author User:Mtcv

Licence: Creative Commons Attribution Share-Alike 2.5 Generic
Source Wikipedia Dover

Jane Lambert

As the Johnson administration's precondition for the resumption of talks on a withdrawal agreement within the meaning of art 50 (2) on the Treaty of European Union is one that the remaining EU member states cannot possibly meet without undermining the raison d'être of the Union, it is imperative for businesses of all kinds and in all industries to plan for no deal.  Though it is often said that there is a majority in Parliament against no deal, the only way MPs can prevent it is by forcing a general election through passing a vote of no confidence in accordance with s.2 (3) of the Fixed Term Parliaments Act 2011 and by the country's returning a government with a mandate to remain.  That will require an enormous act of political courage on the part of remain minded Conservative MPs and a very effective general election campaign by remain politicians.

Two reports that businesses will find useful have been published this week by the Institute for Government ("IfG") and the CBI. 

The IfG's report, Preparing Brexit: No Deal, by Joe Owen and others, starts from the premise that "no deal would not be the end of Brexit."  It adds:

"The UK will be out of the European Union, but the all-encompassing job of adapting to the new reality and building a new relationship with the EU will still be incomplete. The biggest questions Brexit will still need to be settled. The difficult choices that have been unresolved for the last three years will not evaporate overnight on the 31 October. And Brexit will remain the key dividing line in a Parliament in which Johnson’s government has a wafer-thin majority, and one that is constantly under threat."

It maps out the likely political and economic scenario for the period up to 31 Oct, the immediate aftermath and the months following brexit.

The CBI's What comes next? The business analysis of no deal preparations by 15 of the Confederation's specialists in offers more focused business-orientated advice.  Its message is as follows:

"First, it’s time to escalate preparations. Having analysed Brexit preparations by the UK government, the European Commission, EU Member States and companies in the 27 areas of the UK’s relationship with the EU that are most important to businesses, the CBI has concluded that no one is ready for no deal. 

Second, preparations can have a material impact. Working with its member businesses and Trade Associations, the CBI has compiled over 200 recommendations for reducing the harm of no deal. 

Third, many no deal mitigations rely on negotiations between the UK and the EU, which will hold all the political difficulties experienced in talks so far."

Like the  IfG, the CBI warns that "many of the consequences of no deal will be felt for years to come."  Hopes on the part of the government or indeed the long-suffering British public that getting brexit over the line will put the matter to rest are likely to prove forlorn.

There are several other issues upon which the CBI and IfG appear to agree. One is shifting government onto a no-deal footing.  Another is that Northern Ireland is likely to be affected more than anywhere else in the UK and unless a power-sharing agreement on restoring devolved government can be reached between the Democratic Unionist Party and Sinn Fein very quickly legislation will be required to reintroduce direct rule into Northern Ireland.  Far from supercharging the economy, there will be vast swathes of British industry that will require support.

Anyone wishing to discuss this article or the legal consequences of brexit generally (particularly with reference to IP) should call me on 020 7404 5252 or send me a message through my contact form.

EU Preparations for a "No Deal" Brexit

Jane Lambert

Hardly a day goes by without an avalanche of emails from the Department for Exiting the European Union on HM Government's preparations for a "no-deal" exit from the European Union. By contrast, the European Commission's output is much smaller.  The reason for the disparity in volume is obvious.  As the Commission's press release of 12 June 2019 points out, a withdrawal without an agreement in accordance with art 50 (2) of the Treaty on European Union "will obviously cause significant disruption for citizens and businesses and would have a serious negative economic impact." However, the press release also notes that such serious negative economic impact will "be proportionally much greater in the United Kingdom than in the EU27 Member States."

According to its press release, the Commission has been preparing for such a scenario since December 2017:

"To date, the Commission has tabled 19 legislative proposals, 18 of which have been adopted by the European Parliament and Council. Political agreement has been reached on the remaining proposal – the contingency Regulation on the EU budget for 2019, which is expected to be formally adopted later this month. The Commission has also adopted 63 non-legislative acts and published 93 preparedness notices."

It summarized its preparations in a press release of 10 April 2019.

The Commission has reviewed its preparations in view of the extension of the notification period until 31 Oct 2019 and "concluded that there is no need to amend any measures on substance and that they remain fit for purpose." The press release adds that the Commission does not plan any new measures ahead of the new withdrawal date.   The Commission has also completed a tour of the capitals of the 27 remaining states and found a high degree of preparation by member states for all scenarios.

The press release has focused on the following topics that require continued and particular vigilance:

• Citizens' residence and social security entitlements, 
• Medicinal products, medical devices and chemical substances,
• Customs, indirect taxation and border inspection posts,
• Transport,
• Fishing, and
• Financial services.

For British citizens residing in the EU, the Commission has published a useful webpage on EU27 Member States measures on residence rights of legally residing UK nationals and social security entitlements related to the UK in case of no deal. As for other matters, border posts are in place, planes will continue to fly and land unhindered between the UK and EU member states for the time being and financial institutions in London are making such preparations as may be necessary to continue operations in the EU.

As many of these preparations will have to be implemented by member states, the Commission has a convenient portal to the national brexit preparedness websites of each of those countries.

Anyone wishing to discuss this article or brexit, in general, can call me during office hours on 020 7404 5252 or send a message through my contact page.

Brexit Briefing March 2019

Standard YouTube Licence

Jane Lambert

Had all gone according to plan, this would have been my first post exit day Brexit Briefing.  However, the UK is still a full member of the European Union at least until 12 April 2019 on the terms that I mentioned in Extension of Art 30 Notice Period 27 March 2019.  What happens after that will depend on the European Council meeting which shall take place on 10 April 2019, the current discussions between the Prime Minister and the Leader of the Opposition and the fate of the European Union (Withdrawal) (No 5) Bill in the House of Lords. 

Since the last Brexit Briefing, there has been a massive demonstration for a second referendum on the streets of London (see Brexit march: Million joined Brexit protest, organisers say 23 March 2019 BBC website) and 6,061,092 individuals appear to have signed an online petition to revoke Mrs May's notification of intent to withdraw from the EU which she served on 29 March 2017.  President Tusk referred to those manifestations of support for the European Union in his address to the European Parliament which elicited the response from Richard Ashworth MEP shown above. These are but straws in the wind but it is probably fair to say that the danger of a Brit8ish departure from the EU without a withdrawal agreement has receded slightly and the prospects of remaining within the bloc either through a second referendum or a straightforward revocation have advanced slightly.

Both the European Union and the United Kingdom have been making preparations for the UK's departure from the EU without a deal,  According to the Commission's press release of 25 March 2019, the EU's preparations are complete and can be viewed on its Brexit preparedness website.  British preparations are continuing and those that have been made so far appear on the Prepare for EU Exit site.

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

The Patents (Amendment) (EU Exit) Regulations 2018

Jane Lambert

In Patents if there’s no Brexit Deal 3 Oct 2018, I discussed the government's guidance Patents if there's no Brexit Deal 24 Sept 2018.  I wrote:

"With regard to patents and SPCs, the guidance notes that few areas of patent law derive from EU legislation. Pharmaceutical and agrochemical products are important exceptions in that SPCs provide an additional period of protection for those inventions after their patents run out. There are also special provisions for biotechnological inventions, compulsory licences for patented medicines and limitations to the scope of a patent monopoly to permit trials and tests and other activities. The note states that s.2 of the European Union (Withdrawal) Act 2018 will preserve the relevant EU legislation and s.3 will incorporate it into our law."

Supplementary legislation to preserve rights subsisting under EU regulations has now been drafted. pursuant to s.8 of the European Union (Withdrawal) Act 2018,

The draft legislation is known as The Patents (Amendment) (EU Exit) Regulations 2018,  There are 69 of those regulations divided into 8 Parts:

• Part 1 (reg 1) Introduction (citation)
• Part 2 (regs 2 - 4) Amendments to the Patents Act 1977
• Part 3 (reg 5) Amendments to the Copyright Designs and Patents Act 1988
• Part 4 (regs 6 - 17) Amendments to The Patents and Plant Variety Rights (Compulsory Licensing) Regulations 2002
• Part 5 (reg 18) Amendments to the Patent Rules 2007
• Part 6 (regs 19 - 36) Supplementary Plant Protection Certificates - Amendments to Reg (EC) No 1610/96
• Part 7 (regs 37 - 50) Compulsory Licensing of Pharmaceutical Patents - Amendments to Reg (EC) No 816/2006, and
• Part 8 (regs 51 - 69) Supplementary Protection Certificates for Medicinal Products - Amendments to Reg (EC) No 469.2009. 

The Patents and Plant Variety Rights (Compulsory Licensing) Regulations2002 (SI 2002/247) implement parts of Directive 98/44/EC on the legal protection of biotechnological inventions. The EU regulations on supplementary protection certificates are directly effective.

SPC (supplementary protection certificates) extend the monopoly granted by a patent for up to 5 years after the patent's expiry to make up for the time needed to obtain regulatory approval for the distribution of the patented invention.   To make sure that SPCs continue to be available, the statutory instrument replaces references to the EU and its institutions or member states with references to the UK, the Intellectual Property Office and other British organizations.

I shall mention this draft legislation at the 11th Annual Forum on Pharma Biotech Patent Litigation in Amsterdam, 26 and 27 Feb 2019. Anyone wishing to discuss this article, the draft statutory instrument or patents and brexit generally should call me on 020 7404 5252 during office hours or sending me a message through my contact form. 

No Deal Preparations on Each Side of the Channel

Jane Lambert

Yesterday I was snowed under with a blizzard of emails from our own government setting out its preparations for "no deal".  Though they arrived the day after the cabinet had announced an intensification of preparations for a departure without a withdrawal agreement it was obvious that they had been planned if not written a good deal earlier.

Although I ploughed through all those emails I selected three that are likely to be of interest to my readers:

• Producing food products protected by a ‘geographical indication’ if there’s no Brexit deal;
• Existing free trade agreements if there’s no Brexit deal; and 
• Trade remedies if there's no Brexit deal.

The first of those emails updates guidance which was first published on 24 Sept 2018 which I mentioned in Geographical Indications over Brexit 6 Oct 2918 NIPC Branding.  The email gives more details of the new British scheme for protecting geographical indications which will be published shortly including the new logo and the protection that UK producers can expect in the remaining states and EU producers in the UK after 29 March 2019.  I shall offer seminars on the new British system at our chambers in London and Birmingham during the New Year,

The second states that HM government will try to negotiate bilateral agreements with third countries that replicate those countries' arrangements with the EU as soon as possible after Brexit.  Until these are agreed the United Kingdom will rely on "most favoured nation" terms.

Finally, a new quango is to be set up by the name of the Trade Remedies Authority which will investigate complaints of dumping and unfair practices. The guidance does not say what will be done if the quango finds an unfair trading practice but Annex 2 to the WTO Agreement provides for consultations. references to dispute settlement panels and corrective measures.

I also received a succinct Communication from the Commission to the European institutions preparing for the withdrawal of the UK from the EU on 30 March 2019 and implementing the Commission’s Contingency Action Plan.  The Communication discusses the Action Plan and sets out the following principles for contingency measures:

• "Contingency measures should not replicate the benefits of membership of the Union, nor the terms of any transition period, as provided for in the draft Withdrawal Agreement; 
• They should be temporary in nature. For the measures adopted today, the Commission has, where relevant, proposed time limitations which are a function of the specific situation in the sector concerned;
• They should be adopted unilaterally by the European Union in pursuit of its interests and should be revocable at any time; 
• They should respect the division of competencies provided for by the Treaties; 
• National contingency measures should be compatible with EU law; 
• They should not remedy delays that could have been avoided by preparedness measures and timely action by the relevant stakeholders."

The Communications addresses citizens; rights, financial services, air traffic, road haulage, customs and climate change policy.

Anyone wishing to discuss this article or Brexit generally should call me on 020 7404 5252 or send me a message through my contact page. 

Plant Breeders' Right after Brexit

A Saline Resistant Wheat Variety

Author US Department of Agriculture
Licence Copyright waived by US government
Source Wikipedia "Plant Breeding"

Jane Lambert

A plant breeders' right is the exclusive right to prevent reproduction, marketing, selling and certain other acts in relation to new plant varieties.  Plant breeders can acquire those rights for the UK alone by registering  the plant variety with the Plant Variety Rights Office in Cambridge. Alternatively, they can obtain such protection in all 28 EU member states including the UK by registering it with the Community Plant Variety Office ("CPVO") in Angers.

The legislation that established the CPVO and provides for plant breeders' rights throughout the EU is Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights ("the Plant Variety Rights Regulation").  That regulation will cease to apply to the UK once it leaves the EU by reason of art 50 (3) of the Treaty of European Union.  If HM government concludes a withdrawal agreement substantially on the terms of the draft that has circulated since the end of February the regulation will continue to apply to the UK until 31 Dec 2020.   If this country leaves without such an agreement the regulation will cease to apply after 29 March 2019.

On 12 Oct 2018 the Department for Agriculture, Food and Rural Affairs published a guidance note entitled Plant variety rights and marketing of seed and propagating material if there’s no Brexit deal in case the UK leaves the EU without a withdrawal agreement.  According to the note, existing Community plant variety rights belonging to British rights holders will continue to be recognized and enforced in the remaining EU member states. They will also be recognized and protected in the UK presumably because the regulation will be incorporated into our national law by s.3 of the European Union (Withdrawal) Act 2018.

The guidance states that where an application has been made to the CPVO but not granted before the UK leaves the EU, the applicant must make a fresh application to the Plant Variety Rights Office. However, the applicant will keep the same priority date and rely on the same test for distinctiveness, uniformity and stability.

The CPVO issued a Notice to Stakeholders regarding the withdrawal of the UK and EU rules in the field of Plant Variety Rights on 30 Jan 2018.

Anyone wishing to discuss this article or plant breeders' rights generally should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.

Patents if there’s no Brexit Deal

Jane Lambert

Since the 23 Aug 2018 the Department for Exiting the European Union has been publishing guidance on how to prepare for Brexit if there is no withdrawal agreement (see Jane Lambert And if there is no deal ......... 24 Aug 2018).  These are indexed in How to prepare if the UK leaves the EU with no deal which was published on 24 Sept 2018.  Several of those guidance notes concern intellectual property including Patents if  there's no Brexit deal subtitled How the UK patent system would be affected if the UK leaves the EU in March 2019 with no deal published on 24 Sept 2018.

Like all the other guidance notes, this one opens with the statement:

"A scenario in which the UK leaves the EU without agreement (a ‘no deal’ scenario) remains unlikely given the mutual interests of the UK and the EU in securing a negotiated outcome."

It continues that negotiations are going well but the government has to be ready for all eventualities. It has published this and other other technical notes "to allow businesses and citizens to understand what they would need to do in a ‘no deal’ scenario, so they can make informed plans and preparations."

The note explains how our withdrawal from the EU without a deal would affect:

• the UK patent system and supplementary protection certificates ("SPC"),
• the Unified Patent Court ("UPC") and unitary patent, and
• correspondence addresses and confidentiality for UK patents.

In respect of each of those topics the note sets out the position before and after 29 March 2019.

With regard to patents and SPCs, the guidance notes that few areas of patent law derive from EU legislation. Pharmaceutical and agrochemical products are important exceptions in that SPCs provide an additional period of protection for those inventions after their patents run out. There are also special provisions for biotechnological inventions, compulsory licences for patented medicines and limitations to the scope of a patent monopoly to permit trials and tests and other activities.  The note states that s.2 of the European Union (Withdrawal) Act 2018 will preserve the relevant EU legislation and s.3 will incorporate it into our law.

The note is much less certain and hence less helpful when it comes to the UPC. It begins with the extraordinary statement 

"The Unified Patent Court will hear cases relating to European patents and the new unitary patent – both administered by the non-EU European Patent Office"

in the "Before 29 March 2019" section. That is simply not happening and is unlikely to happen in the next few months.  The note then contradicts itself in the last two sentences of that section:

"The Unified Patent Court (UPC) is not yet in force, with the start date being dependent on ratification of the Unified Patent Court Agreement by Germany. It is unclear whether the Unified Patent Court and unitary patent will start before 29 March 2019."

It describes the UPC as "an international patent court established through an international agreement (the Unified Patent Court Agreement) between 25 EU countries" without mentioning that art 84 (1) states that this agreement is open to membership only to EU member states or that the legislation that provides for the unitary patent is an EU regulation.

After 29 March 2019 the note suggests two different scenarios for the UPC:

• The UPC Agreement will not come into force because the UK will leave the EU before Germany ratifies the agreement; or
• The agreement does come into force in which case "there will be actions that UK and EU businesses, organisations and individuals may need to consider." These will include exploring whether it will be possible for the UK to remain within the UPC and unitary patent systems in a ‘no deal’ scenario". 

The note gives the following advice to businesses and other stakeholders if the agreement comes into force before the 29 March 2019 but the UK has to withdraw:

• "UK, EU and third country businesses will still be able to use the Unified Patent Court and unitary patent to protect their inventions within the EU
• any existing unitary patents (UPs) will give rise to patent protection within the UK with no action required by the right holder. The UP system will only come into force when the Unified Patent Court is operational. UPs will not be available to businesses until this point
• provision will be made regarding the status of any pending cases before the Unified Patent Court at exit
• UK, EU and third country businesses seeking protection in the UK for their inventions will need to use national patents (including patents available from the non-EU European Patent Office) and the UK court system."

The last section on correspondence addresses and confidentiality for UK patents is really concerned with addresses for service, representation in the European Patent Office and Intellectual Property Office and legal professional privilege.  As the EPO unlike the EU Intellectual Property Office, is not an EU institution, there is unlikely to be any change in the existing in the arrangements that relate to patents.  The position with regard to Community designs and EU trade marks will be different.

About the best advice in the guidance note is that "businesses may wish to seek legal advice on how these arrangements could affect their business model or intellectual property rights."  Advice which is repeated below:

"You should consider whether you need separate professional advice before making specific preparations."

That is a service that I am well placed to provide and very willing to give.

Anyone wishing to discuss this article or Brexit generally should call me on  +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form.