Brexit Briefing - December 2017

Author Furfur
Licence: Creative Commons Attribution-Share Alike 4.0 International

Jane Lambert

To my great surprise and joy our government's representatives achieved sufficient progress in their negotiations with the Commission on citizens' rights, the Irish border and the financial settlement for the Commission to recommend to the Council that "sufficient progress has been made in the first phase of the Article 50 negotiations with the United Kingdom" (see the Commission's press release Brexit: European Commission recommends sufficient progress to the European Council (Article 50) 8 Dec 2017).

The actual terms of the agreement in principle are set out in a Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union 8 Dec 2017.  It is clear that important concessions have been made by Her Majesty's government, including a continued role for the Court of Justice of the European Union after we leave the European Union as I pointed out in A Continued Role for the CJEU after Brexit - A Sensible Concession 29 Dec 2017.  I observed that it was, of course, a very sensible concession and I commended the Prime Minister for making it but I had to add that "a climb down is still a climb down."

There was one paragraph of the Joint Report that I found personally comforting and that was paragraph 32 on continuing recognition of professional qualifications:

"Decisions on recognition of qualifications granted to persons covered by the scope of the Withdrawal Agreement before the specified date in the host State and, for frontier workers, the State of work (either the UK or an EU27 Member State) under Title III of Directive 2005/36/EC (recognition of professional qualifications where the person concerned was exercising the freedom of establishment), Article 10 of Directive 98/5/EC (lawyers who gained admission to the host State profession and are allowed to practise under the host State title alongside their home State title) and Article 14 of Directive 2006/43/EC (approved statutory auditors) will be grandfathered. Recognition procedures under these Directives that are ongoing on the specified date, in respect of the persons covered, will be completed under Union law and will be grandfathered."

Now that goes some way to meeting one of the submissions of the leaders of the British intellectual property professions to Her Majesty's government about which I blogged earlier today in IP and Brexit - Key Requests to HMG 9 Jan 2018. I am 100% behind my chairman, Daniel Alexander QC, in making those requests. They are vitally important to British business as well as the British legal and intellectual property professions. But asking for the legislation creating EU trade marks, Community designs, geographical indications of origin and plant breeders' rights to remain part of out law and even retaining part of the Central Division of the Court of First Instance of the Unified Patent Court in London really is like asking for the moon. I fervently hope that I am wrong but I very much doubt that I am.

So now we proceed with the next phase of negotiations which are for a transitional agreement that will govern our relations with the remaining member states after 29  March 2019. The Commission set out its negotiating objectives just before Christmas.  These are summarized in the Commission's press release on 20 Dec 2017 Brexit: European Commission recommends draft negotiating directives for next phase of the Article 50 negotiations:

• "There should be no "cherry picking": The United Kingdom will continue to participate in the Customs Union and the Single Market (with all four freedoms). 
• The Union acquis should continue to apply in full to and in the United Kingdom as if it were a Member State. Any changes made to the acquis during this time should automatically apply to the United Kingdom.
• All existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures will apply, including the competence of the Court of Justice of the European Union.
• The United Kingdom will be a third country as of 30 March 2019. As a result, it will no longer be represented in Union institutions, agencies, bodies and offices.
• The transition period needs to be clearly defined and precisely limited in time. The Commission recommends that it should not last beyond 31 December 2020."

Now I am all in favour of give and take but even my hackles rise at those proposals. No wonder our government is exploring no deal alternatives such as membership of the Trans-Pacific Partnership if they will have us (see UK looks to join Pacific trade group after Brexit 2 Jan 2018 Financial Times) and the appointment of a minister for no-deal (see A minister for no deal? 8 Jan 2018 Financial Times).

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