European Commission - "Getting Ready for Changes"

By Rolf Süssbrich - Own work, CC BY-SA 3.0, 

https://commons.wikimedia.org/w/index.php?curid=863700

Jane Lambert

On 9 July 2020, the Commission published a communication entitled Getting ready for changes Communication on readiness at the end of the transition period between the European Union and the United Kingdom to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (COM(2020) 324 final).  While negotiations for a new relationship between the UK and the EU are intensifying the communication nites that even if the parties were to conclude an ambitious partnership covering all areas agreed in the Political Declaration such an agreement would create a relationship which will be very different from the United Kingdom’s participation in the EU Single Market and Customs Union, and in the VAT and excise duty area.  It will inevitably create barristers to trade in goods and services and cross-border mobility and exchanges that do not exist today.

The communication considers the changes that will be required in the following sectors:

• Trade in goods
• Trade in services
• Energy
• Travel and tourism
• Mobility and social security coordination
• Company law and civil law
• Intellectual property
• Data protection
• International agreements.

For each of those topics, there is a statement of principle followed by "Advice to Businesses and Member State Administrations".   For "Intellectual Property", for instance, there is a statement that the exhaustion of rights principle will continue until 31 Dec 2020.  That is followed by the warning:

"As of 1 January 2021, traders in the European Union can no longer invoke exhaustion vis-àvis right-holders when sourcing products from the United Kingdom."

The advice to Businesses and Member State Administrations is:

"Businesses engaged in parallel trade from the United Kingdom should re-visit their business arrangements."

The communication also notes that while existing EU unitary intellectual property rights (EU trade marks, Community designs, Community plant variety rights and geographical indications) remain protected under the Withdrawal Agreement, any new EU unitary rights will have a reduced territorial scope as they will no longer have effect in the UK.

The British government has also started a publicity campaign to prepare the public for these changes.  Yesterday it distributed by email to my and other subscribers an op-ed that the Rt Hon Michael Gove MP had published in The Daily Telegraph entitled "Outside the EU, a bright future awaits Britain."

Anyone wishing to discuss this article or the legal consequences of the end of the transition period should call my clerk, Stephen, on 07986 948267 or send me a message through my contact page.

European Circuit Webinar "IP Litigation post Brexit"

Author Jtdi  Copyright waived by the author

Jane Lambert

Yesterday I attended a webinar entitled "IP Litigation post-Brexit". It was presented by the European Circuit which is an association of advocates across the European Union and beyond modelled loosely on the Circuits of the Bar of England and Wales. The webinar was opened by the Leader of the Circuit, Mr Colm Ó hOisín SC. It was chaired by Ms Margaret Gray SC. The speakers were Nicholas Saunders QC of Brick Court, Jonathan Newman SC and Sir Robin Jacob.

The questions that I hoped might be addressed in this webinar were "What is to become of the Unified Patent Court?" and "What is to happen to cross-border litigation after Regulation (EU) No 1215/2012 ceases to apply to the UK?"  The first question was addressed because I asked it as did Fidelma Macken.  Sadly, nobody raised the second.

Mr Saunders noted that a vast volume of EU legislation has been absorbed into the laws of the United Kingdom.  From 1 Jan 2021 judges in this country will no longer refer points of law relating to that legislation to the Court of Justice of the European Union under art 267 of the Treaty on the Functioning of the European Union.  As British judges will have to do that for themselves he did not think it would be long before noticeable divergencies in the interpretation of the same instrument emerged.

Mr Newman agreed and opined that Irish courts would become less and less likely to follow English decisions as a consequence.  However. most of his presentation focused on the Commercial Court of the Republic of Ireland. and a proposal to create an intellectual property list within that Court. Sir Robin said that Ireland had a great opportunity as the main common law jurisdiction to take much of the work that will no longer go to London but it was an opportunity that Ireland was in danger of losing.  Ireland had yet to ratify the Unified Patent Court Agreement and failed to send judges to judicial forums.   The Netherlands was also a small country but the Dutch courts and lawyers had made a big contribution to the development of European IP law.

On the question of what will happen to the Unified Patent Court, Sir Robin thought that the agreement will have to be renegotiated.   Annex II of the Agreement allocated chemistry and pharmaceutical work to London. Sir Robin doubted whether businesses in those industries would want to litigate their disputes in Milan.  Judges and lawyers from the UK had contributed massively to the preparations of the Court including the procedural rules.  He was saddened by his country's withdrawal from the project and believed that the UK would be missed.

Although I enjoyed the presentations I think the webinar would have been improved greatly by contributions from IP Bar Association, the IP Lawyers Associations and the Chartered Institutes of Patent and Trade Mark Attorneys.  Sir Robin suggested that the Irish might send for Mr Justice Birss who would be an excellent speaker.  Perhaps, Lord Justice Arnold might be even better as it was he who reformed the Patents County Court and created the Small Claims Track.

Anyone wishing to discuss this article or any of the topics mentioned in it should call my clerk on  07986 948267 or send me a message through my contact page.

Brexit Briefing June 2020

By NuclearVacuum - File:Location European nation states.svg, CC BY-SA 3.0, 

https://commons.wikimedia.org/w/index.php?curid=8087888

Jane Lambert

Art 126 of the Agreement on the withdrawal of theUnited Kingdom of Great Britain and Nothern Ireland from the EuropeanUnion and the European AtomicEnergy Community ("the withdrawal agreement") provides for a transition or implementation period, which shall start on the date of entry into force of that agreement and end on 31 Dec 2020.  During that period, EU law continues to apply to the UK under art 127 thereby enabling it to remain in the customs union and single market. That period could have been extended by up to 2 years by virtue of art 132 had the British government so wished but that opportunity lapsed on 1 July 2020.

The other significant event that occurred on 1 July is that Germany assumed the presidency of the European Union from Croatia and it is clear from the German presidency website that brexit is not a priority for the German government.  Talks between negotiators for the Commission and British government have not gone well.  Negotiations in Brussels that were supposed to last from 29 June to 3 July 2020 broke up early (see Statement by Michel Barnier following the restricted round of negotiations for a new partnership between the European Union and the United Kingdom of 2 July 2020).

According to Monsieur Barnier, the sticking points are:

"1, robust guarantees for a level playing field – including on state aid – to ensure open and fair competition among our businesses;
2. a balanced, sustainable and long-term solution for our European fishermen and women;
3. an overarching institutional framework and effective dispute settlement mechanisms."

In a speech to the General Assembly of Eurofi on 30 June 2020, Monsieur Barnier mentioned a fourth on the regulation of financial services. In his view"the UK is trying to keep as many Single Market benefits as it can. It would like to make it easy to continue to run EU businesses from London, with minimal operations and staff on the continent."  He observed:

"The UK chose to no longer be a Member State. It chose to leave the EU Single Market and stop applying our common ecosystem of rules, supervision and enforcement mechanisms. In particular, it refuses to recognise any role for the European Court of Justice.  These choices have consequences. The UK cannot keep the benefits of the Single Market without the obligations."

Negotiations between the Commission and the British government are continuing  There will be informal discussions this week and a further round of formal negotiations in the week commencing 20 July 2020.

The British government has opened negotiations to accede to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership ("CPTPP") which is essentially the Trans-Pacific Partnership without the United States.  It is also conducting bilateral negotiations with Australia, Japan and New Zealand which are members of the CPTPP and well as with the USA.  I have opened a new CPTPP page to monitor the accession negotiations as well as the new partnership negotiations with the EU. I can report very little that is new with bilateral negotiations.

Anyone wishing to discuss this briefing should call my clerk, Stephen Somerville, on +44(0)7986 948267 or send me a message through my contact page.