UPC Injunction Restraining Infringement of a European Patent (UK) - Fujifilm v Kodak

View of Mannheim

Author Georg Buzin Licence CC BY-SA 4.0  Source Wikimedia Commons

 

Jane Lambert

Court of First Instance of the Unified Patent Court, Mannheim Local Division (Presiding Judge Tochtermann, Legally qualified Judges Böttcher and Agergaard and Technically qualified Judge Wismeth) Fujifilm Corp. v Kodak GmbH and Others UPC_CFI_365/2023 18 July 2025

A “European patent (UK)” is defined by s.130 of the Patents Act 1977 as "a European patent designating the United Kingdom."  S.77 (1) of the Act provides that "a European patent (UK) shall, as from the publication of the mention of its grant in the European Patent Bulletin, be treated for the purposes of Parts I and III of this Act as if it were a patent under this Act."  Until now, an owner of a European patent designating the UK who believed that his or her patent had been infringed would issue proceedings in the Patents Court or the Intellectual Property Enterprise Court in England or Wales (or the Court of Session in Scotland or the High Court in Northern Ireland).  The significance of the decision of the Mannheim Local Division of the Court of First Instance of the Unified Patent Court in Fujifilm Corp v Kodak GmbH and Others of 18 July 2025 is that a court outside the United Kingdom has restrained the infringement of a European patent (UK).

The Dispute

Fujifilm Corporation of 26-30, Nishiazabu 2-chome, Minato-ku, Tokyo 106-8620, Japan is the proprietor of European patent 3 51 1174, which designates the United Kingdom and Germany among other countries.  Fujifilm believed that Kodak GmbH, Kodak Graphic Communications GmbH and Kodak Holding GmbH of Stuttgart ("Kodak") had infringed the patent by importing infringing items from a UK company in the Kodak group and marketing them in Germany.  Kodak denied infringement and challenged the validity of the patent on grounds of anticipation, obviousness and added matter and counterclaimed for the patent's revocation.

Procedural History

The proceedings regarding the German designation were separated from those regarding the British designation pending the Court of Justice of the European Union's judgment in C‑339/22, BSH Hausgeräte GmbH v Electrolux AB in the light of the Advocate-General's opinion  EU: C:2024:687, [2024] EUECJ C-339/22_O, ECLI:EU: C:2024:687.  In the German proceedings, the patent was found to be valid and infringed.

BSH Hausgeräte GmbH v Electrolux AB 

The Court of Justice delivered judgment in Case C‑339/22, BSH Hausgeräte GmbH v Electrolux AB EU: C:2025:108, [2025] EUECJ C-339/22, [2025] WLR(D) 306, ECLI:EU: C:2025:108 on Feb 2025. I discussed the judgment in Cross-Border Jurisdiction in Patent Disputes - BSH Hausgeräte GmbH v Electrolux AB yesterday.   The salient points were that: 

• A court in the EU member state in which a defendant is domiciled pursuant to art 4 (1) of  Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 Dec 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) can determine claims for the infringement of patents in states other than its own;
• Art 24 (4) of Regulation 1214/2012 does not apply to states outside the EU unless they are party to the Lugano Convention or other agreement; and
• A court can consider a patent's validity in infringement proceedings, but its judgment will bind only the parties to the litigation and does not affect the subsistence of the patent or bind the authorities of the country that granted the patent.

Judgment

Referrinng to to the CJEU’s ruling in BSH Hausgeräte that the court of the EU member in which the defendant is domiciled pursuant to art 4 (1) does have jurisdiction to rule on an infringement action based on a patent granted or validated in a non-EU member state even if the invalidity of this patent is raised as a defence, the Mannheim judges held at para [31] of their judgment that the UPC has jurisdiction to decide upon the infringement action as far as it relates to acts infringing the UK national part of the patent in suit. That is subject to the Lugano Convention or other bilateral treaties that may exist, but in the case of the UK, there are none.  The judges proceeded to consider the claims and defences and found that the patent was valid and infringed.  They considered the available remedies and decided that they had the power to grant injunctions under s.61 (a) of the Patents Act 1977 as well as under art 25 (a) and art 63 (1) of the Agreement on a Unified Patent Court OJ 20.6.2013  C175/1.

Order

The Mannheim Local Division made the following order:

"A.I. The Defendants are ordered to refrain from: 

1. offering, placing on the market, using or storing it for those purposes a lithographic printing plate precursor within the United Kingdom, that has the following features: 

a. A lithographic printing plate precursor comprising:

an aluminum support; and
an image recording layer on the aluminum support,

wherein the aluminum support includes a

n anodized film on a surface of the image recording layer side,

the anodized film has micropores extending in a depth direction from the surface of the anodized film on the image recording layer side, 

the micropores include at least large-diameter pores whose maximum diameter inside the anodized film is in a range of 0.01 µm to 0.30 µm, and wherein an average value of depths of the large-diameter pores to the bottom from the surface of the anodized film is in a range of 100 nm to 1500 nm,  

an average pore diameter of the micropores in the surface of the anodized film is in a range of 10% to 50% of the maximum diameter of the micropores inside the anodized film,  

a thickness of the anodized film is in a range of 550 nm to 2850 nm, and  

the image recording layer contains an acid color former,

 - direct infringement of claim 1 EP 3 511 174 B1 -

2. supplying and/or offering to any person other than a party entitled within the territory of the United Kingdom with 

lithographic printing plate precursors  

which are suitable and intended to use with  

a. method of preparing a lithographic printing plate, comprising 

a step of imagewise-exposing the lithographic printing plate precursor of any of claims 1-14; and 

a step of supplying at least any of printing ink or dampening water and removing an image recording layer in a non-image area on a printing press.

 - indirect infringement of claim 15 EP 3 511 174 B1 - 

b. a printing method, comprising: a step of imagewise-exposing the lithographic printing plate precursor according to any one of claims 1 to 4; 

a step of supplying at least any of printing ink or dampening water and removing a non-image area of an image recording layer on a printing press to prepare a lithographic printing plate; and 

a step of performing printing using the obtained lithographic printing plate. 

- indirect infringement of claim 16 EP 3 511 174 B1 - 

A.II. It is ordered, that in the event of any violation of the injunction under A.I. above, the respective Defendants shall pay severally to the Court a penalty payment of EUR 50 per square meter of the contested printing plate precursor. 

B.I. It is held that the Defendants shall pay damages to the Claimant compensating all losses caused by infringing acts referred to in A.I. above in the United Kingdom since 17 July 2019. 

II. The Defendants are ordered to inform the Claimant to the extent of which the Defendants have committed the infringing acts of EP 3 511 174 referred to in A.I – stating 

1. the origin and distribution channels; 

2. the quantities delivered, received or ordered, as well as the price obtained; in particular  

• the individual deliveries, broken down by delivery quantities, times and prices and the respective product designations as well as the names and addresses of the customers;  
• the turnover, the gross margin and the contribution margin generated by the Defendants with the sale of these products; 
• the individual offers, broken down by quantities, times and prices and product designations as well as the names and addresses of the commercial offer recipients;  
• the advertising carried out, broken down by advertising media, their circulation, distribution period and distribution area, and in the case of Internet advertising, the domain, access figures and placement periods of each campaign;  
• the identity of all third parties involved in the distribution, in particular the names and addresses of the commercial buyers and the sales outlets for which the products were intended; 

whereby the Defendants each reserve the right to disclose the names of their non-commercial customers to an impartial auditor only, chosen by Claimant and paid by the respective Defendant, who, upon Claimant’s request, confirms or denies whether a specific non-commercial customer is contained in the disclosure and who, in all other cases, is subject to confidentiality towards the Claimant. 

III. The Defendants are ordered to destroy at their own expense the products, material and/or implements referred to under A.I.1. which are in their possession and/or ownership within the United Kingdom. 

IV. The Defendants are ordered to recall the products referred to under A.I. which have been placed on the market from the channels of commerce, with reference to the infringement determined by a court of law (Unified Patent Court, Local Division Mannheim, decision of 2 April 2025); 

V. The Defendants are ordered to definitively remove the products referred to under A. I. from the channels of commerce at their own expense. 

C. All further requests of Claimant are dismissed. 

D. The Defendants have to bear the costs of the litigation. 

E. The Orders A.I., B.II. to B.VI. shall be enforceable only after the Claimant has notified the Court which part of the orders it intends to enforce, this notification has been served on the Defendant concerned and a certified translation of the orders in the official language of a Contracting Member State in which the enforcement shall take place has been provided by the Claimant and served on the Defendant concerned."

Comment

As this judgment was only handed down on 18 July 2025, there has been no opportunity to consider what steps a defendant in Kodak's position might take to avoid the enforcement of the claimant's UK patent or European patent (UK) by the UPC or, indeed, any court in an EU member state.  One possibility might be to seek the revocation of the patent under s.72 of the Patents Act 1977 or possibly a declaration of non-infringement under s.71 before proceedings are launched in the Unified Patent Court.  The possibility of staying proceedings in such circumstances was mentioned in para [35] of the Mannheim judgment because rule 295 of the UPC Rules of Procedure provides that the UPC may stay proceedings:

"(a) where it is seized of an action relating to a patent which is also the subject of opposition proceedings or limitation proceedings (including subsequent appeal proceedings) before the European Patent Office or a national authority where a decision in such proceedings may be expected to be given rapidly;"

or 

"where the proper administration of justice so requires" (r 295 (m)."  

Another possible solution might be an old-fashioned anti-suit injunction if the claimant is amenable to the jurisdiction of the English courts.

Anybody wishing to discuss this article may call me on +44 (0)20 7404 5252 during normal UK business hours or send me a message through my contact form at any other time.

Retained EU Law (Revocation and Reform) Bill

 

Jane Lambert

The second reading of the Retained EI Law (Revocation and Reform) Bill took place on St Crispin's Day,  Ironically it was the day on which the bill's sponsor, Mr Jacob Rees-Mogg MP, resigned his portfolio as Business Secretary.  A copy of Mr Rees-Mogg's letter of resignation appears on his website.

According to its explanatory notes, the purpose of the bill is to enable the government to remove the special features of retained European Union law ("REUL") in the English and Welsh, Scottish and Northern Irish legal systems by the end of 2023.  REUL is not defined in the bill but it refers to the regulations and directives of the European Council and Commission and the judgments of the Court of Justice of the European Law which were retained by ss. 2 to 7 of the European Union (Withdrawal) Act 2018 as amended by the European Union (Withdrawal Agreement) Act 2020.   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.

Paea 3 of the explanatory notes states that the bill will achieve its objective by:

(a) repealing or assimilating REUL, within a defined scope, by the end of 2023 

(b) Repealing the principle of supremacy of EU law from UK law by the end of 2023; 

(c) Facilitating domestic courts departing from retained case law; 

(d) Providing a mechanism for UK government and devolved administration law officers to intervene in cases regarding retained case law, or refer them to an appeal court, where relevant; 

(e) Repealing directly effective EU law rights and obligations in UK law by the end of 2023; 

(f) Abolishing general principles of EU law in UK law by the end of 2023; 

(g) Establishing a new priority rule requiring retained direct EU legislation (RDEUL) to be interpreted and applied consistently with domestic legislation; 

(h) Downgrading the status of RDEUL for the purpose of amending it more easily;

(i) Creating a suite of powers that allow REUL to be revoked or replaced, restated or updated and removed or amended to reduce burdens.

The bill as introduced consists of 23 clauses and 3 schedules.

I shall follow the progress of the bill and its application to intellectual property law.  Anyone wishing to discuss this topic may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.

British Proposals for Renegotiating the Northern Ireland Protocol

Author Heenah Licence CC BY-SA 4.0 Source Wikimedia Commons

 

Jane Lambert

The pickle in which HM government finds itself over the Northern Ireland Protocol to the agreement between the EU and the UK for the UK's withdrawal from the European Union was hardly unexpected. If there is to be regulatory divergence between the UK and the EU there have to be customs inspections and formalities somewhere.  If the re-establishment of customs posts on the border between the Republic of Ireland and Northern Ireland is unacceptable to this country's European and American allies, then inspections and formalities have to take place between Great Britain and both parts of the island of Ireland.

Immediately after the end of the implementation or transition period provided by art 126 of the withdrawal agreement, there was disruption in the supply of goods from Britain to Northern Ireland.  These led to street protests and calls for the denunciation of the Protocol if not the whole of the withdrawal agreement.  But there are signs that Northern Ireland retailers are sourcing more and more products from within Northern Ireland, the Republic or the rest of the EU.  That is, of course, weakening economic ties with Great Britain and strengthening ties with the Republic. Ultimately that could lead to the cession of Northern Ireland to the Irish Republic. While Irish unification would be welcomed by some in Great Britain it would be regarded as a calamity not only by Northern Ireland Unionists but also by many members of the British Conservative and Unionist Party.   

Mrs Theresa May was offered an arrangement similar to the Northern Irish Protocol but she rejected it on the ground that it was something that no British Prime Minister could accept.  That raises the question of why her immediate successor did just that.  Para 13 of the UK Government position paper Northern Ireland Protocol: the way forward (CP 502) published on 21 July 2021 offers the following explanation:

"However Parliament’s insistence in the BennBurt Act that the UK could not leave the EU without an agreement radically undermined the Government’s negotiating hand; and the final compromise, while delivering the fundamental aim of a clear Brexit, and recognisably based on the UK’s proposal, included several elements which would prove to cause difficulties subsequently: notably, though not only, the EU’s insistence on customs arrangements between Great Britain and Northern Ireland, with detail to be worked out subsequently; and the failure to provide for Northern Ireland’s consent to enter the arrangements."

That does not make a lot of sense.  Had the government's negotiating hand not been "undermined" the government would have been free to take the United Kingdom out of the EU without any agreement on anything including the border between the Irish Republic and Northern Ireland.  That would inevitably have led to border controls and probably security forces to protect them.

The doleful consequences of the Protocol are summarized in para 20 of the position paper:

"Supply chains have been disrupted and costs increased, with staff redeployed to deal with new bureaucracy, impacting investment and growth. Consumers have seen real impacts: at least 200 companies in Great Britain have stopped servicing the Northern Ireland market; plants and trees long-sourced from Great Britain can no longer be stocked in nurseries or garden centres in Northern Ireland; supermarkets have reduced their product lines due to the delays and barriers in moving goods; and the costs of deliveries for those who do serve the market have continued to increase. The effects are felt more broadly too. Medicines are at risk of discontinuation because the hurdles to clear to reach the small Northern Ireland market make supply unviable. And pet owners, including those reliant on assistance dogs, have faced the prospect of unnecessary vaccinations and treatments, and bureaucratic certification hurdles simply to travel within the United Kingdom."

If this is true, the Northern Irish Protocol is clearly not working for the benefit of British suppliers to Northern Ireland but that does not mean that consumers in that province are going hungry.  There are signs that supplies from Great Britain are being replaced by supplies from Ireland and other EU member states (see InterTradeIreland Cross-Border Trade & Supply Chain Linkages Report).

In the position paper, the government is threatening to invoke art 16 of the Protocol.   It is hard to see how that will help.  The first paragraph of the article provides:

"If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol."

It would appear that "safeguard measures" taken under this article are to be proportionate, short-term and to be taken only in an emergency.  If such measures lead to an imbalance between the rights and obligations under this Protocol, the other party may take such proportionate rebalancing measures as are strictly necessary to remedy the imbalance in accordance with art 16 (2).  Extensive consultations are required before a party may resort to art 16.

The revision to the Protocol that the British government appears to want is inspection-free entry of goods that are intended for consumption in Northern Ireland and full controls for goods intended for the Republic and beyond.   How this would work is not clear because most exporters to the Republic would be expected to choose the M4 to Fishguard or the A55 to Hollyhead rather than the long drive to Cairnryan. The only advantage of the latter would be the opportunity to smuggle. 

The other concession that the government seeks is to remove the resolution of disputes from the jurisdiction of the Court of Justice of the European Union. As EU law applies to the Protocol it is unlikely that there can be much movement there.

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

Fourth Round of Brexit Talks: Still a Logjam

Author Gene Daniels

Jane Lambert

In Dispute Resolution: A Potential Deal Breaker? 8 Aug 2017 and Has Mrs May done enough to break the Logjam? 24 Sep 2017 I argued that the real stumbling block to a settlement in the withdrawal negotiations is not the size of the divorce bill but what guarantees, if any, can be given of our performance of our obligations under a withdrawal agreement. As I said in my latter article, Mrs May's offer to incorporate such a withdrawal agreement into national law and make sure our courts may refer directly to it is a step in the right direction but it does not address the problem that a future British government could repeal any statute that incorporates a withdrawal agreement at any time.

In their closing statements, Monsieur Barnier and Mr Davis seemed to agree. Monsieur Barnier said:

 "On citizens' rights, our priority, the UK has agreed to give direct effect to the Withdrawal Agreement.
This is very important.
It will give the assurance to our citizens that they will be able to invoke their rights, as defined by the Withdrawal Agreement, before UK courts.
We agreed to guarantee - for the citizens concerned - that the UK will apply EU law concepts in a manner that is consistent with EU law after Brexit.
But we failed to agree that the European Court of Justice must play an indispensable role in ensuring this consistency. This is a stumbling block for the EU" (see Press statement by Michel Barnier following the fourth round of Article 50 negotiations with the United Kingdom 28 Sept 2017 Commission website)

Mr Davis replied:

"But we must also acknowledge that a major question remains open between us – it relates to the enforcement of citizens’ rights after we leave the European Union.
The UK has been clear that, as a third country outside of the European Union, it would not be right for this role to be performed by the European Court of Justice.
But we have listened to the concerns that have been raised – and as a direct result of hearing those concerns the United Kingdom has committed to incorporating the final withdrawal agreement fully into UK law. Direct effect if you like.
We also recognise the need to ensure the consistent interpretation of EU law concepts.
We have not agreed the right mechanism for doing this yet but discussions this week have again been productive" (see David Davis' closing remarks at the end of the fourth round of EU exit negotiations in Brussels 28 Sept 2017 Department for exitng the European Union).

Monsieur Barnier acknowledged the progress that had been made in the talks but warned in his speech that the parties were not yet in a position to move on to discussing future trading relations. That was confirmed today by the President of the Commission who warned that such movement would require a miracle (see Brexit: Miracle needed to advance talks, says Juncker 29 Sept 2017 BBC website).

This will be a great disappointment for the British government, particularly those members of it who had campaigned for Brexit in last year's referendum. They had hoped that the remaining member states would back down on the ground that as they export far more manufactured goods to us than we export to them they had at least as much to gain from a trade deal as we would. That may be true but I doubt if it will happen for two reasons. The first is that the benefit of maintaining the union between themselves outweighs (or at any rate is perceived to outweigh) the value of their trade with us, significant though that may be. The second is that it is by no means certain that they would lose that trade as we are unlikely to lose our predilection for German cars and white goods, French wine and cheese, Spanish shoes and Italian handbags just because prices rise a little to take account of whatever tariff on those items that we may impose. They also know we want a trade deal and that Mrs May has already made concessions in her Florence speech to get one. They might be forgiven for believing that hanging tough delivers rewards.

So is there any way to break the logjam?  From a British lawyer's perspective, yes there is. We may not have a written constitution but we do have rules that known as conventions that are at least as robust as those of other countries' constitutions.  For instance, any Parliament could extend the 5-year limit to the duration of a Parliament originally contained in the Parliament Act 1911 and now re-stated in the Fixed Term Parliaments Act of 2011 but it would never do so. Would not an agreement between the main political parties not to repeal a withdrawal agreement statute be enough?  The political reality for those who understand our constitution is that it probably would, but that may not be how they see things from across the Channel.

Could we give in?  It would solve a lot of problems if we did.  It might enable us to continue to participate in a number of institutions that we like such as Euratom and the Unified Patent Court but it would probably re-open divisions in the Tory Party (and perhaps also the Labour Party) that the referendum was intended to heal. I remain pessimistic.

New Position Papers from DxEU

Jane Lambert

Mr David Davis and his civil servants have been busy. While everyone else in England and Wales has been looking forward to the late summer bank holiday they have been preparing for the third round of talks with the Commission's Art 50 Task Force on 28 Aug 2017 (the programme for which is here). They have also produced a number of position papers and future partnership papers on data protection, enforcement and dispute resolution, cross-border civil judicial cooperation and future customs arrangements even though none of those "future partnership issues" is yet on the table.

The most interesting of the "future partnership" position papers is the enforcement and dispute resolution position paper which I discussed in HMG's Enforcement and Dispute Resolution Position Paper 23 Aug 2017 and the data protection paper which I discussed in HMG's Exchange and Protection of Personal Data Position Paper in my Data Protection blog today.

The enforcement and dispute resolution position paper has given rise to a lot of comment much of it uninformed because of the inclusion of the adjective direct in the first line of the paper.  The sentence reads:

"In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU)."

The Court of Justice determines disputes that arise under the EU treaties which cease to apply to automatically under art 50 (3) of the Treaty of European Union or the coming into force of a withdrawal agreement whichever happens first. In that sense, the jurisdiction of the Court of Justice will end. It will no longer be possible for the Commission to take infringement proceedings against our government for failing to implement a directive or for an English court to refer an issue of Union law that arises in English litigation to the Court under art 267 of the Treaty on the Functioning of the European Union.  But the Court will continue to influence our law for many years to come and perhaps indefinitely by virtue of the incorporation of EU legislation and case law into our national law under the provisions of the European Union (Withdrawal) Bill. Moreover, as clause 6 (2)  of the Bill permits courts in the UK to have regard to decisions of the Court of Justice after we leave the Union its decisions will continue to have considerable persuasive authority indefinitely.

I criticized the position paper but on the grounds that it guarantees no rights for citizens including those of our own country to take proceedings against our government if they suffer loss or damage by reason of its failure to implement an obligation under any withdrawal agreement that we may make with the remaining member states or of any derogation that it may make from such agreement. To my mind, that is much more fundamental.

The data protection paper is much more sensible. We need to ensure the unrestricted flow of personal data between Britain and the UK if our service industries are to continue to do business in Europe. The same is, of course, true of the service industries of the remaining member states. The difference is that they could survive disruption much better than us because they could still do business freely with each other.  The financial services industries in say Frankfurt, Paris, Amsterdam, Dublin and Madrid might even do well if it became more difficult to exchange data with London. The European negotiators almost certainly know that and will be no hurry to do any favours for us unless and until they see some concessions on the issues that matter to them.

Should anyone wish to discuss this article or Brexit in general, call my chambers on +44 (0)20 7404 5252 during normal office hours or send me a message on my contact form.

Dispute Resolution: A Potential Deal Breaker?

Author Cédric Puisney 

Licence Creative Commons Attribution 2.0 Generic  

Jane Lambert

On 20 July 2017 negotiators for the British government and the Commission published a joint technical note on the comparison between the British and EU positions on citizens' rights.  It is drawn up rather like a Scott schedule with 5 columns:

• Topic
• Detail
• EU Position
• UK Position
• Issue.

The "Issue" column is colour coded, green indicating convergence, red divergence and yellow where further discussion is required to deepen understanding.

There is an encouraging amount of green in the right-hand column but the red reveals fundamental differences of approach between the two sides.  Take "Individual enforcement of rights" on page 4, for example.  The EU position is that the provisions of any agreement for the withdrawal of the UK from the EU ("the withdrawal agreement") that give rights to citizens of the remaining EU member states shall be directly enforceable by those citizens without regard to any statute that may implement the withdrawal agreement. The British position, on the other hand, is that any rights that may be granted to those citizens will depend on a British statute though a court in the UK may have regard to the withdrawal agreement to determine legislative intent.  

The problem for the 27 remaining member states is that governments do not always perform their treaty obligations. That may be because of a genuine difference of view on the interpretation of the treaty or it may be because domestic political pressures make it impossible for a government to honour its international obligations. Her Majesty's Government may be no worse in that regard than the governments of most other countries.  Indeed, we like to think that ours is somewhat better but we have been called "Perfidious Albion" in the past and possibly for a reason.

The difficulty can best be appreciated by an example. Suppose a Polish worker in Lincolnshire is denied a benefit to which he or she believes he or she is entitled.  Right now, he or she can appeal to an administrative tribunal which has to apply the law as set out in the EU legislation in accordance with the judgments of the Court of Justice of the European Union ("the CJEU"). Should a point of law arise upon which there is no guidance from the CJEU the tribunal of last resort has a duty to refer the issue to the CJEU for a preliminary ruling under art 267 of the Treaty on the Functioning of the European Union. The EU negotiators want something like that to continue after Brexit but the British contend that the worker's rights have to depend entirely on the wording of the statute possibly as interpreted by previous judgments of the English courts. If the worker believes that the Act fails to implement the terms of the withdrawal agreement, the most he or she could do would be to ask his or her government to intercede with the British government diplomatically. The Polish foreign ministry might or might not accept its citizen's request but, even if it did, it could take years to persuade the British government to change the law, Moreover, any such change would be of no immediate, practical use to the unfortunate Polish worker.

As the Commission's negotiators will have anticipated that sort of difficulty, they are unlikely to recommend a withdrawal agreement that leaves EU citizens in the UK without an effective remedy. It follows that unless the two sides can agree what that remedy should be before 29 March 2019, there can be no withdrawal agreement when the treaties cease to apply to us pursuant to art 50 (3) of the Treaty of European Union. That is no doubt why the Bar Council's Working Group on Brexit described dispute resolution as a "potential deal breaker" at para 4 of Paper 10 of the 3rd edition of The Brexit Papers. When the treaties fall away all sorts of commercial and administrative arrangements that we have made with our largest and closest trading partner over most of the last half century fall away with them with alarming consequences for us, the rest of Europe and, indeed, the rest of the world. 

The problem arises because our government announced at para 2 of its white paper, The United Kingdom’s exit from, and new partnership with, the European Union:

"We will take control of our own affairs, as those who voted in their millions to leave the EU demanded we must, and bring an end to the jurisdiction in the UK of the Court of Justice of the European Union (CJEU)."

It added at 2.3:

"The Court of Justice of the European Union (CJEU) is the EU’s ultimate arbiter on matters of EU law. As a supranational court, it aims to provide both consistent interpretation and enforcement of EU law across all 28 Member States and a clear process for dispute resolution when disagreements arise. The CJEU is amongst the most powerful of supranational courts due to the principles of primacy and direct effect in EU law. We will bring an end to the jurisdiction of the CJEU in the UK. We will of course continue to honour our international commitments and follow international law"

To its credit, the government did acknowledge at 2.4 that "ensuring a fair and equitable implementation of our future relationship with the EU requires provision for dispute resolution" and suggested several dispute resolution models between paras 2.5 and 2.8 and Annex A.  The Bar Council Working Group has considered and commented on those models between paras 20 and 27 of Paper 10. Those models were also discussed at the Institute for Government seminar, Brexit, dispute resolution and the European Court of Justice on 24 July 2017. I would urge all my readers to watch Raphael Hogarth's presentation and the video of the discussion, both of which are available on YouTube.

At paragraph 2.9 of its white paper, our government says "the UK will seek to agree a new approach to interpretation and dispute resolution with the EU" and adds at 2.10:

"The actual form of dispute resolution in a future relationship with the EU will be a matter for negotiations between the UK and the EU, and we should not be constrained by precedent. Different dispute resolution mechanisms could apply to different agreements, depending on how the new relationship with the EU is structured. Any arrangements must be ones that respect UK sovereignty, protect the role of our courts and maximise legal certainty, including for businesses, consumers, workers and other citizens."

The problem with that from the European point of view is that treaties are part of the remaining states' legal order.  Any withdrawal agreement that the remaining member states make with us will be just as much part of EU law as any other.  As the white paper, acknowledges, the CJEU is "the EU’s ultimate arbiter on matters of EU law." Prof. Catherine Barnard says in Issues concerning the Court of Justice that workarounds such as hybrid courts consisting of judges from the CJEU and other states have been considered before and have had to be abandoned as incompatible with EU law.

Looking at the other matters being discussed by the negotiating teams, the sort of problems that I have envisaged for the Polish worker could apply to a resident of Dundalk who wants to keep his or her job in Newry or the computation of the amounts that the British government may agree to pay under any withdrawal agreement. Similar problems will occur if we want to continue to participate in Euratom, the European Medicines Agency or indeed the Unified Patent Agreement as art 20 obliges the Unified Patent Court to apply EU law in its entirety and to respect its primacy.

It seems to me that the positions of the British and EU negotiators are incompatible and irreconcilable. If I understand their arguments correctly it would seem that the Bar Council's Brexit Working Party and Prof. Barnard would agree with me. It is very depressing - rather like watching two crowded passenger trains steaming towards each other at full speed on the same stretch of track. A crash can be averted only if one side or the other gives way.  Since it would be impossible for the EU to give way without dismantling a legal order that has subsisted in one form or another since the establishment of the European Coal and Steel Community in 1952 I can't see how any concessions can possibly come from them.

Should any of my readers wish to discuss this article or the legal consequences of Brexit generally, they should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.