Brexit Briefing December 2020

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Jane Lambert

Much to the surprise of many commentators, the UK concluded a Trade and Cooperation Agreement with the European Union on Christmas eve to govern the parties' future relationship from 31 Dec 2020. I discussed it in outline in The Draft EU-UK Trade and Cooperation Agreement: What We Know So Far on 26 Dec 2020. It was a great deal better than nothing but it would not have satisfied anybody who might have been hoping for a licence to undercut manufacturers and farmers on the Continent by abandoning EU product safety, environmental and employment safeguards. Her Majesty's government is, of course, free to do any of those things but if it does it will face tariffs or other countermeasures from the EU.  A lot of people in the UK from fishermen to financial services providers have expressed dismay at the deal.

The agreement required primary legislation for implementation and the 40 clause European Union (Future Relationship) Bill with its 6 schedules amounting to 80 pages cleared all its parliamentary stages in a single day.  The other important piece of primary legislation was the United Kingdom Internal Market Act 2020.  The provisions to which the EU and parliamentarians of all parties objected which I mentioned in The United Kingdom Internal Market Bill 19 Sept 2020 were dropped.

So now the legislative framework is in place in international and national law.  The terms of the UK's withdrawal from the European Union are set out in the Withdrawal Agreement (Agreement on the withdrawal of theUnited Kingdom of Great Britain and Nothern Ireland from the European Union and the European AtomicEnergy Community).   The provisions relating to the transition or implementation period lapsed at 23:00 on 31 Dec 2020 but the others remain in force.

These include the continued legal protection of intellectual assets that were protected by EU law such as registered Community designs and EU trade mark by UK intellectual property rights.  The Withdrawal Agreement was ratified and implemented by the European Union (Withdrawal Agreement) Act 2020 though the legislation amending the Registered Designs Act 1949, the Patents Act 1977, Thw. Copyright, Designs and Patents Act 1988 and the Trade Marks Act 1994 had already been made in anticipation of the withdrawal of the UK from the EU without agreement. The Trade and Cooperation Agreement contained a number of provisions relating to intellectual property which I discussed in The IP Provisions of the EU-UK Trade and Cooperation Agreement on 30 Dec 2020 but these will not require legislation in the immediate future.

New provisions for the resolution of disputes between the UK and the EU over the interpretation and application of the Withdrawal Agreement came into force at 23:00 on 31 Dec 2020 which I discussed in Dispute Resolution under the Withdrawal Agreement  31 Dec 2020.  Some matters will be reserved to the Court of Justice of the European Union notwithstanding the UK's departure from the EU but most will be resolved through consultation and cooperations with arbitration as a last resort.

Finally, the Department for International Trade has reported trade agreements with Canada, Keneffeya, Singapore, Turkey and Vietnam which appear to roll over agreements that those countries have made with the EU in December.

Anyone wishing to discuss this article or the UK's new trading environment generally should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.

Brexit Briefing January 2020

Hey @BorisJohnson and @Nigel_Farage, we just made Big Ben bong for you😉. Sound on. pic.twitter.com/6wnxYi9BOU

— Led By Donkeys (@ByDonkeys) January 31, 2020

Jane Lambert

Some marked the UK's departure from the EU with countdowns and flag-waving.  Others, such as "Led by Donkeys", protested. I attended a concert by the European Union Chamber Orchestra at St George's Hall in Bradford,  As its name suggests, this is an orchestra made up of artists from 10 countries which is funded by the European Commission,  It describes itself on its homepage as a "musical ambassador" for the European Union.

As I listened to the music I would not help reflecting on the smoothness with which brexit had been achieved.  Thanks to the  Agreement on the withdrawal of theUnited Kingdom of Great Britain and Nothern Ireland from the European Union and the European Atomic Energy Community, the rules that have governed this country's relations with its nearest neighbours, closest allies and biggest market will continue to apply until the end of the year at least and in some respects beyond which gives businesses and individuals time to plan. However, I also reflected that achieving such continuity had been a close-run thing.  The Agreement was signed only in the last few days of January and the legislation which implements it received royal assent only on 23 Jan 2020.  For much of the period since the referendum, there was a very real danger that the rules governing the UK's relationship with the 27 remaining member states would simply cease to apply when it left the EU.

In the field of intellectual property, much of the way ahead has been charted by art 126 and Title IV of the withdrawal agreement as I explained in Intellectual Property Post Brexit 2 Feb 2020 and The Intellectual Property Provisions of the Draft Withdrawal Agreement 19 Nov 2018.  However, some uncertainties remain.  One is whether the Unified Patent Court Agreement will ever come into force and if it does whether the United Kingdom can remain a party to it.  Another is whether the UK will accede to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters when  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 351, 20.12.2012, p. 1–32 ceases to apply.  One hopeful sign is that Iceland, Norway and Switzerland have agreed to support the UK's intent to accede (see the Ministry of Justice's News story Support for the UK’s intent to accede to the Lugano Convention 2007 28 Jan 2020).   I discussed the mechanics of the settlement between the UK and the EU in The Revised Draft Withdrawal Agreement and Political Declaration  21 Oct 2019 and The European Union (Withdrawal Agreement) Act 2020 30 Jan 2020). 

Now that the UK has left the EU the focus changes from the terms of withdrawal to the future relationship.  The European Commission has already begun to set out its stall with the President's speech to the London School of Economics (see The UK's Future Relationship with the EU - Ursula von der Leyen's Speech and Meeting with Johnson 9 Jan 2020).   It has also published its position on a number of issues (see The UK's Future Relationship with the EU - The Commission sets out its Negotiating Position 17 Jan 2020).  The Prime Minister is due to set out the UK's position today (see Rajeev Syal and others UK will refuse close alignment with EU rules, Johnson to say, Prime minister’s vision on future trading relationship will clash with that of EU leaders 2 Feb 2020 The Guardian/ The Observer).

To reflect the change of focus I have removed many of the links on this website to resources on the withdrawal agreement negotiations and inserted links to resources on the future relationship.  Anyone wishing to discuss this article should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page. 

Intellectual Property Post Brexit

Author Furfur  Licence CC BY-SA 4.0 Source Wikipedia Brexit

Jane Lambert

While many regret the UK's departure from the EU, it could have been so much worse.  There was a very real danger that the 2 year notification period provided by art 50 (3) of the Treaty of European Union would expire without any agreement on the arrangements for British withdrawal and that the rules that had governed the UK's relations with its nearest neighbours, closest allies and biggest market would simply cease to apply. The Agreement on the withdrawal of theUnited Kingdom of Great Britain and Nothern Ireland from the European Union and the European Atomic Energy Community sets out the terms upon which the country leaves the EU and the Political Declaration setting out the framework for the future relationship between the European Union and the theUnited Kingdom maps out the path for future cooperation.

Art 126 of the Withdrawal Agreement provides for a transition or implementation period between 1 Feb and 31 Dec 2020 during which time European Union law will continue to apply to the UK.  That is implemented by s.1 of the European Union (Withdrawal Agreement) Act 2020 which inserts a new s.1A into the European Union Withdrawal Act 2018 suspending the repeal of the law-making provisions of the European Communities Act 1972 until the end of the transition period,   Title IV of the Agreement contains provisions converting EU trade marks and registered Community designs and Community plant varieties into British trade marks, registered designs and plant breeders; rights from 1 Jan 2021.   I discussed those provisions while they were in draft form in The Intellectual Property Provisions of the Draft Withdrawal Agreement on 19 Nov 2018.

The upshot is that Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark OJ L 154, 16.6.2017, p. 1–99, Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs OJ L 3, 05/01/2002 P. 1 - 24 and Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights OJ L 227, 1.9.1994, p. 1–30 continue to apply to the UK until 31 Dec 2020.  As the Intellectual Property Office's news story, Intellectual property and the transition period published 29 Jan and updated 31 July 2020, points out, EU trade marks and Community designs and plant varieties remain in force. International registrations for trade marks and designs protected via the Madrid and Hague systems which designate the EU will continue to extend to the UK.  The courts of the UK that have been designated EU Trade Mark and Community Design courts will retain their jurisdiction for the rest of the year.

The same applies to other EU legislation including Regulation (EC) No 469/2009 on supplemental protection certificates for medicinal products and Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market and to rules of law such as the exhaustion of rights doctrine. Judges in the UK can continue to refer questions of EU law to the Court of Justice of the European Union for preliminary rulings under art 267 of the Treaty on the Functioning of the European Union.  Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ L 351, 20.12.2012, p. 1–32 will continue to apply.

These arrangements will end on 31 Dec 2020  but most rights holders will continue to be protected.  Instead of their EU trade marks and registered Community designs and plant varieties, proprietors will rely on their equivalent UK intellectual property rights.  A new British supplemental unregistered design right will apply to designs that are protected as unregistered Community designs. Proprietors of plant protection and medicinal product inventions may continue to apply for supplemental protection certificates.   These and other matters are discussed in greater detail in my article of 19 Nov 2018. 

In that article I wrote:

"The draft withdrawal agreement makes no provision for the Unified Patent Court Agreement which is awaiting German ratification. However, if Germany ratifies the Unified Patent Court Agreement during the implementation period there would appear to be no reason why that agreement should not come into force during that period, What would happen after that will depend on the terms of the UK's future relationship with the EU."

According to Geoffrey Bacon of Bristows, there are indications that the German Federal Constitutional Court could deliver judgment on a challenge to German ratification of the Unified Patent Court Agreement in the next few weeks (see Bacon Update on BVerfG cases allocated to Justice Huber, the UPC case rapporteur 23 Jan 2020 Bristows UPC website).  The European Patent Office has confirmed its readiness to grant unitary patents. Decisions on continued British participation and probably the future of the project will, therefore, have to be made before the end of this year.

Anyone wishing to discuss this article or IP and British withdrawal from the EU generally may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

The European Union (Withdrawal Agreement) Act 2020

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Jane Lambert

The European Union (Withdrawal Agreement) Act 2020 received royal assent on 23 Jan 2020 and is now law. Its purpose is "to implement, and make other provision in connection with, the agreement between the United Kingdom and the EU under Article 50 (2) of the Treaty on European Union which sets out the arrangements for the United Kingdom's withdrawal from the EU". It consists of 42 sections divided into 5 parts with 5 schedules.

It will be recalled that the withdrawal agreement addresses citizen's rights, the border between Northern Ireland and the Irish Republic and the United Kingdom's contribution to the EU budget.  It also provides for an implementation period during which time the UK remains a member of the customs union and single market but ceases to be part of the EU. Accordingly, EU law continues to apply to the UK even though HM government will have ceased to be represented on the European Council and there will be no members of the European Parliament from the UK. The agreement is accompanied by the political declaration setting out the framework for the future relationship between the European Union and the United Kingdom.  The implementation period was intended to run from 29 March 2019 until 31 Dec 2020 but as the date of the UK's departure has been extended three times it will now last 11 months from 31 Jan to 31 Dec 2020.

Part 1 of the Act amends the European Union Withdrawal Act 2918 by inserting three new sections and one new Part into Schedule 2 of the 2018 Act.  Those new sections are s.1A which suspends the repeal of the European Communities Act 1972 during the implementation period, s.1B which makes further provision for the preservation of EU law during that period, and s.8A which enables ministers to make regulations to modify EU legislation after the end of the implementation period.  The new Part 1A confers a similar power on the devolved authorities which will apply two years after the end of the implementation period. 

S.5 of the European Union (Withdrawal Agreement) Act 2020 inserts a new s.7A into the European Union Withdrawal Act 2018 which transposes the provisions of the withdrawal agreement into English and Welsh, Scots and Northern Irish law.  S.6 inserts a new s.7B which makes similar provision in relation to agreements with Iceland, Liechtenstein and Norway and Switzerland on the UK's withdrawal from the European Economic Area.

Part 3 of the Act (s.7 to s.17) deals with citizens' rights.  S.18 inserts a new s.8B into the European Union Withdrawal Act 2020 which allows ministers to make further regulations in relation to separation issues.  S.20 provides for the funding of the UK's contribution to the EU budget.  S.21 inserts a new s.8C and s.22 a new Part 1C into Schedule 2 of the European Union Withdrawal Act 2018 to implement the protocol on Northern Ireland in the withdrawal agreement.   S.23 and Schedule 3 continues the safeguards in the Belfast Agreement. S.24  continues cooperation between the United Kingdom and Northern Ireland with the Republic of Ireland.

Perhaps the most important of the remaining provisions of the act is s.33 which inserts a new s.15A into the European Union Withdrawal Act 2020 preventing ministers from agreeing to extensions of the implementation period.  Any such extension will, therefore, require primary legislation which should not be a problem given the government's commanding majority in the House of Commons.

Anybody wishing to discuss this article or the UK's withdrawal from the EU generally may call me on 020 7404 5252 during office hours or message me through my contact form.