English Speaking Commercial Courts in France, Germany and the Netherlands bid for London's Work

Author Raimond Spekking Licence CC BY-SA 4.0 Source Wikimedia

 

Jane Lambert

At 23:00 on 31 Dec 2020, 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 ceased to apply to the United Kingdom.  One of the likely consequences that Judge Marieke Witkamp noted in her article Internationalizing Domestic Courts in Europe: A Comparative Analysis on Procedure, Function, Organization is that judgments of the English courts will be more difficult to enforce in the EU a well as the means of obtaining evidence and serving process.

That has presented an opportunity for lawyers and the judicial authorities in Germany, France and the Netherlands to grab some of the international commercial litigation work (estimated at €16 billion by Orchard Reports in UK Legal Services Market Trends Report 2019 (Feb 2019))  that has been coming to the Business and Property Courts in London.  All of those countries have opened special commercial courts in which evidence may be admitted and at least some of the proceedings may be conducted in English.  In Part 4 of her article, which is a preprint of the article that is submitted to Cambridge University Press to become part of the book International Commercial Courts: The Future of Transnational Adjudication Judge Witkamp compares the French, German and Dutch courts with the Abu Dhabi Global Market, Dubai International Financial Centre and Qatar Financial Centre Courts in the Gulf. the Astana Financial Centre Court in Kazakhstan and the Singapore International Commercial Court.

The courts in France, Germany and the Netherlands differ from the courts in Asia in several respects but perhaps the most striking is that they apply their own substantive and procedural law whereas the courts in the Gulf, Singapore and Kazakhstan apply the common law and procedures based on the Civil Procedure Rules or, in the case of Singapore, Rules of the Supreme Court.  Whereas many of the judges of the Asian courts come from the leading common law jurisdictions (including Ebgabd and Wales), the judges of the French, German and Dutch courts are local judges who have a good command of English. Similarly, litigators and advocates from overseas can appear before the Asian courts but only locally qualified practitioners can appear in the French, German and Dutch courts.  In the case of the French and Grman courts that is probably because part of the written procedure and the judgment in those courts must be in French or German as the case may be.  In Part 5, the judge compares various features of the European courts and it has to be said that the Dutch court appears to be far more users friendly than its rivals. Although the judge argues that the civil law system of litigation offers advantages over the common law system it does not yet appeal to most international businesses litigators.  

There is one international commercial court that is in the EU that applies the common law and has seen an influx of lawyers from the UK and that is the Commercial Court in Ireland. This has more in common with the Singapore International Commercial Court than it does with the English speaking courts on the Continent but the author does not mention that tribunal.  That is surprising as it must be a serious contender for any European work that London loses. Later in the year, James Bridgeman SC who is a door tenant of our chambers and our French and Italian colleagues, Natasha Peter and Guido Carducci will give a webinar on enforcement of EU trade marks, Community designs and plant varieties in their respective jurisdictions. It is not clear whether the French, German and Dutch courts would have jurisdiction in those cases but the Dublin Commercial Court certainly does.

Anyone wishing to discuss this article or any topic mentioned in it can call me on +44 (0)20 7404 5252 or send me a message through my contact form.  I wish all my readers a very happy Easter.

How Brexit has changed IP Law

 

EU Intellectual Property Office, Alicante

Author Kristof Roomp Licence CC BY 2.0

Jane Lambert

In Were we to go - what would Brexit mean for IP? (26 Feb 2016 NIPC Law) I first considered the consequences of Britsh withdrawal from the European Union.  It was obvious that EU trade marks, Community designs and Community plant varieties would cease to apply to the UK.  Also, I could not see how the UK could remain a party to the Unified Patent Court Agreement as the agreement was open only to EU member states. I considered the topic further in IP Planning for Brexit on 7 Dec 2016 in Implications of Brexit on Intellectual Property Law: What can be salvaged from the UPC Agreement on 17 Feb 2017 and in my contribution on IP to Helen Wong's Doing Business After Brexit.  As the UK has withdrawn from the EU and the transitional period is over, it is now possible to take stock. 

Art 50 Treaty on European Union ("TEU")

A timetable for the UK's departure was set by art 50 of the TEU.   Art 50 (2) requires the EU to negotiate and conclude an agreement with that departing state, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the EU.  Art 50 (3) adds:

"The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

The former Prime Minister, Mrs Theresa May MP, served notification of the UK's intended departure under art 50 (2) on 29 March 2017.  Subject only to the possibility of an agreed extension to the notification period, the British government had to try to negotiate a withdrawal agreement and legislate for the UK's departure before 29 March 2019.

European Union (Withdrawal) Act 2018

The statute that effected the UK's departure from the EU was the European Union (Withdrawal) Act 2018.  As EU law would cease to apply to the UK from the expiry of the notification period or the entry into force of a withdrawal agreement, s.3 (1) of the Act preserved Council regulations by incorporating them into the laws of the UK.  These included the Council Regulations establishing EU trade marks,  Community designs, Community plant varieties and supplementary protection certificates.   S.8 (1) and Sched. 1 of the Act enabled Ministers to amend such Regulations by statutory instrument.   

The 2019 Statutory Instruments

Since it was not certain that a withdrawal agreement could be made and ratified by the 29 March 2019, the following statutory instruments were made in case the UK left the EU without such an agreement:

• The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019 (SI 2019 No 605),
• The Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2019 (SI 2019 No. 265),
• The Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019 No 269), 
• The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019 No 638),  and
• The Plant Breeders’ Rights (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019 No 204).

The Patents (Amendment) (EU Exit) Regulations 2019 (SI 2019 No 801) were made on 4 April 2019 after an extension had been agreed in accordance with art 50 (3) TEU.   The Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2019 (SI 2019 No 1366) were made on 21 Oct 2019.

The Withdrawal Agreement

Following further extensions in accordance with art 50 (3) TEU, the appointment of a new prime minister and more negotiations with the EU  the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community ("the withdrawal agreement") was concluded on 19 Oct 2019.  That agreement was ratified by the European Union (Withdrawal Agreement) Act 2020 on 23 Jan 2020.

Title IV of Part Three of the withdrawal agreement included the following provisions on IP:

• Art 54 provided for continued protection in the UK of intellectual assets that had previously been protected as EU trade marks, registered Community designs, Community plant varieties and geographical indications;
• Art 55 established a procedure for registering trade marks, designs and plant breeders' rights to protect such assets in the UK;
• Art 56 provided for continued protection in the UK of international trade marks designating the EU under the Madrid system and international designs designating the EU under the Hague Agreement;
• Art 57 provided for continued protection in the UK of unregistered Community designs that would have come into being before 23:00 on 31 Dec 2020 for the remainder of their term and the creation of a similar UK intellectual property right to protect such designs that might come into being afterwards;
• Art 58 required continued protection of databases;
• Art 59 provided for pending applications for EU trade marks, RCD and Community plant variety rights;
• Art 60 provided for supplementary protection certificates' and
• Art 61 for the exhaustion of rights.

Although the UK left the EU on 31 Jan 2020 pursuant to the withdrawal agreement, art 126 provided for a transition or implementation period until 23:00 on 31 Dec 2020 during which time EU law would continue to apply to the UK.

The Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020

Because of the extensions under art 50 (3) and the conclusion of a withdrawal agreement, the 2019 statutory instruments were not required until the end of the transition period.  As they had been drafted before the withdrawal agreement was concluded, they had to be modified to give effect to Title IV of that agreement.  The Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020 (SI 2020 No 1050) amended the 2019 statutory instruments as follows:

• Part 2 amended the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019, 
• Part 3 amended the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2019, 
• Part 4 amended the Trade Marks (Amendment etc.) (EU Exit) Regulations 2019, 
• Part 5 amended the Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019, and  
• Part 6 amended the Patents (Amendment) (EU Exit) Regulations 2019.

Part 7 amended the Patents Act 1977 and Part 8 and the Schedule Council Regulation (EC) No 469/2009, Regulation EU) No 2019/933 and the Patent Rules 2007.

Implementation of Title IV

Title IV of the withdrawal agreement is implemented as follows:

EU Trade Marks: Reg 2 and Sched 1 of The Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 as amended by The Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020  implement the provisions of arts 54 and 55 of the withdrawal agreement relating to EU trade marks.  Sched. 1 of the Regulations inserts a new s.52A and Sched 2A into the Trade Marks Act 1994.  They require an existing EU trade mark to be treated as registered under the Act.  Para 2 provides an opt-out for those who do not want a national trade mark. Part 3 governs applications for European Union trade marks which are pending on 31 Dec 2018.  

International Trade Marks Designating the EU: Reg 6 of The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 as amended implements art 56 of the withdrawal agreement by inserting a new s.54A and Sched 2B into the Act.  S. 54A provides for international trade marks designating the EU to be treated as though they had been registered under the Trade Marks Act 1994.  Sched 2B establishes a procedure for the registration of such marks as UK trade marks as well as certain other matters including an opt-out. 

Registered Community Designs:  Reg 5 and Sched. 3 of The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 implement the provisions of arts 54 and 55 of the withdrawal agreement relating to registered Community designs.  Para 2 of Sched. 3 inserts a new s.12A and a new s.12B into the Registered Designs Act 1949.  Para 3 inserts a new Sched 1A and a new Sched 1B into the Act.  S.12A and Sched 1A provide for existing registered Community designs to be treated as designs registered under the 1949 Act. S.12B and Sched 1B provide for international designs designating the EU are to be treated as though they had been registered under the 1949 Act. 

Continuing Unregistered Community Designs:  Reg 4 (3) and Sched 2, of The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 transpose into the laws of the UK the requirement in art 57 of the withdrawal agreement that designs that had been protected as UCD before the 31 Dec 2020 will continue to be protected afterwards. Any UCD that came into being before 23:00 on 31 Dec 2020 will continue to be protected in the UK for the remainder of its term as a “continuing unregistered Community design”.  Reg 4 (3) (a) and Part 1 of Sched. 2 of the 2019 Regulations anend the provisions of the Community Design Regulation that relate to unregistered Community designs.  Reg 4 (3) (b) and Part 2 of Sched. 2 further amend  The Community Design Regulations 2005 (SI 2005 No 2339).

Supplementary Unregistered Designs:  The obligation in art 57 of the withdrawal agreement to protect new designs having individual character that come into being after 23:00 on 31 Dec 2020 by a new UK intellectual property right to be known as the "supplementary unregistered design" is implemented by reg 3 and Sched. 1 of The Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019.  Part 1 of Sched. 1 amends the Community Design Directive and Part 2 The Community Design Regulations.

Databases:  No new legislation was required to preserve The Copyright and Rights in Databases Regulations 1997 (SI 1997 No 3032) in accordance with art 58 of the withdrawal agreement, but that statutory instrument has been amended by reg 28 of The Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019.

Plant Varieties:  The requirement in art 54 (1) (c) of the withdrawal agreement that the holder of a Community plant variety right granted pursuant to Council Regulation (EC) No 2100/942 shall become the holder of a plant variety right in the United Kingdom for the same plant variety is implemented by reg 3 (2) of The Plant Breeders’ Rights (Amendment etc.) (EU Exit) Regulations 2019.  The Regulations revoke Regulation 2100/942 and provide for the registration of Community plant variety rights as UK plant breeders' rights and the processing of pending applications for Community rights. The statutory instrument also amends the Plant Varieties Act 1997 and regulations made under that Act.

Geographical Indications:  Art 54 (2) of the withdrawal agreement requires the UK to continue to protect protected designations of origin, protected geographical indications and traditional specialities guaranteed which are protected throughout the EU by Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ L 343, 14.12.2012, p. 1–29).  That requirement is implemented by The Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2019 (SI 2009 No 1366).  The regulations amend Regulation 1151/2012.  I discussed the UK scheme in Geographical Indications in the UK after 31 Dec 2020 in NIPC Law on 30 Sept 2020 and in The New Protected Food Names Scheme as it will apply in Wales on 26 Oct 2020 in NIPC Wales.

Supplementary Protection Certificates:   Such certificates protect the active ingredients of patented pharmaceutical or plant protection products. for up to 5 years (and in the case of products used to treat children's diseases an extra 6 months)  from the expiry of a patent for such a product. Art 60 (1) of the withdrawal agreement provides for Regulation (EC) No 1610/96 and Regulation (EC) 469/2009 to continue to apply to applications for SPCs lodged before 23:00 on 31 Dec 2020.  That provision is implemented by the incorporation of those regulations into the laws of the UK and their amendment by Part 6 and Part 8 of The Patents (Amendment) (EU Exit) Regulations 2019 as amended.   Further amendments have been made by The Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020.

Exhaustion of Rights:  Art 61 of the withdrawal agreement is implemented by the Intellectual Property (Exhaustion of Rights) (EU Exit) Regulations 2019 as amended by The Intellectual Property (Amendment etc.) (EU Exit) Regulations 2020.

The Intellectual Property Office's news story Intellectual property after 1 January 2021 summarize the changes brought about by this legislation.

Unitary Patent and Unified Patent Court

No provision was made for the unitary patent or the Unified Patent Court in the withdrawal agreement even though such a patent and court had been longstanding objectives of British diplomacy and London was to have hosted part of the Central Division of the Court of First Instance and had fitted out the accommodation for such a court at some expenses. For several years after the referendum, the government argued that it should be possible for the UK to participate in the project as the Unified Patent Court Agreement was an international treaty outside the scope of the European Union.   Mr Boris Johnson MP in his role as Foreign Secretary actually deposited an instrument of ratification of the Agreement on 26 April 2018 (see British Ratification of the UPC Agreement - Possibly the best thing to happen on World Intellectual Property Day  26 April 2018 NIPC News).  Less than 2 years afterwards the government changed its mind and withdrew from the project on 20 July 2020 (see Volte Face on the Unified Patent Court 29 Feb 2020 NIPC News and Unified Patent Court Ratification Bill clears Lower House of the German Federal Parliament  30 Nov 2020).

Trade and Cooperation Agreement

On 24 Dec 2020, negotiators for the European Commission and the British government concluded a Trade and Cooperation Agreement to govern the UK's future relationship with the EU.  The Agreement was ratified by the European Union (Future Relationship) Act 2020 on 30 Dec 2020.   Title V of Part Two of the Trade and Cooperation Agreement contained a large number of provisions relating to IP which I discussed in The IP Provisions of the EU-UK Trade and Cooperation Agreement on 30 Dec 2020.  However, none of those provisions appears to require implementing legislation for the time being and there was no mention of intellectual property in the Future Relationship Act.

Further Information

I intend to give a talk on these provisions over Zoom between 16:30 and 18:00 on Tuesday 26 Jan 2021.  This talk will be free but attendees should register in advance here.  Anyone wishing to discuss this article or any of its contents may call me on +44 (0)20 7404 5252 during normal office hours or send me a message through my contact form.

Brexit Briefing May 2020

By ClemRutter, Rochester, Kent. - Own work,
CC BY 2.5, https://commons.wikimedia.org/w/index.php?curid=2163988

Jane Lambert

A lot happened in May.  Mr David Frost presented British proposals for a comprehensive free trade agreement with accompanying agreements on various other matters (see Jane Lambert Better Late than Never - The UK Counter Proposals in the New Relationship Negotiations 19 May 2020). Michel Barnier answered David Frost's shrill and petulant covering letter from David  Frost of 19 May 2020 with a firm but measured and courteous response the very next day. The British government resumed its negotiations with the USA for a free trade agreement on 5 May 2020 and published its proposals for a free trade agreement with Janan.

The British proposals are structured very differently from the draft agreement of 18 March 2020 but they are a substantial set of documents and contain many provisions upon which the Commission ought to be able to agree.  It is said that Mr Frost's letter irritated many on the continent but they will be aware that Mr Frost and his political masters have an audience of Conservative backbenchers and a Eurosceptic press.  Another round of negotiations begins today on an agreed agenda.  For the first time since negotiations began, both sides' proposals have been exchanged.

If there is to be an extension to the 11th-month transition or implementation period it has to be agreed in June. A bill to extend that period has been introduced into the House of Commons by Sir Edward Davey, acting leader of the Liberal Democrats. It is supported by the Scottish National Party, Plaid Cymru, the Green Party, the Alliance Party and the Social Democratic and Labour Party in Northern Ireland but not the Labour Party and it has been welcomed by Monsieur Barnier in a letter dated  25 May 2020 (a copy of which can be downloaded from this blog's EU negotiations page.  Labour's reticence has surprised some but it can probably be explained by the fact that he party under its new leader is doing rather well in the polls and sees no advantage in picking fights that it can't win,

Many commentators are gloomy about the outcome of the new relationship negotiations but I am not so sure.  A lot of work has been done on the British draft agreements which would have been pointless had they been intended to fail. The UK needs continued access to the single market more than its negotiators concede because there is no obvious alternative. With the highest number of coronavirus deaths in the world and record unemployment, the US economy is in an even worse mess than ours.  It now has race riots in its major cities with which to contend.  Relations with the other economic superpower have deteriorated still further with the Chinese government's clampdown on Hong Kong.

Anyone wishing to discuss this article or the new relationship negotiations, in general, should call 020 3819 8725 while lockdown continues or message me through my contact form

Future Relationship Negotiations: The EU sets out its Stall

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Jane Lambert

The United Kingdom left the European Union on 31 Jan 2020 pursuant to 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"). The Withdrawal Agreement provides for an implementation period during which EU law will continue to apply to the UK until 31 Dec 2020. One of the reasons for the implementation period is to enable the parties to negotiate a new relationship to take effect from 1 Jan 2021.

The parties have already agreed a framework for such a relationship in the Political Declaration setting out the framework for the future relationship between the European Union and the theUnited Kingdom ("the Political Declaration").  The European Council has now authorized the opening of negotiations with the UK for a new partnership agreement in the terms of the draft decision of 13 Feb 2020 and an addendum to the decision setting out directives for those negotiations.

The decision consists of 8 recitals and 3 articles.  The recitals refer to the Withdrawal Agreement and the Political Declaration as well as Council guidelines of 30 March 2018 restating the Council's determination to have as close as possible a partnership with the UK covering trade and economic cooperation and also other areas including, in particular the fight against terrorism and international crime, as well as security, defence and foreign policy. Art 1 of the decision authorizes the European Commission to open negotiations for a new partnership agreement.  Art 2 nominates the Commission as the EU's negotiator.  Art 3 requires the negotiations to be conducted in consultation with the Working Party on the United Kingdom and in accordance with the directives contained in the addendum, subject to any directives which the Council may subsequently issue to the Commission.

The addendum is a much larger document consisting of 46 pages containing 172 paragraphs divided into an introduction and four Parts.  Paragraph 5 of the introduction reminds readers that:

"The negotiations of the envisaged partnership should be premised on the effective implementation of the Withdrawal Agreement and of its three Protocols. In this context, the envisaged partnership should continue to protect the Good Friday or Belfast Agreement reached on 10 April 1998 by the United Kingdom Government, the Government of Ireland and the other participants in the multiparty negotiations in all its parts, in recognition of the fact that the peace process in Northern Ireland will remain of paramount importance to the peace, stability and reconciliation on the island of Ireland. While preserving the integrity of the Single Market, the envisaged partnership should ensure that issues arising from Ireland's unique geographic situation are addressed."

Paragraph 9 acknowledges the very short duration of the implementation period. The Commission is urged to achieve as much as possible during that time and to be ready to continue negotiations after its expiry.

Part I of the addendum concerns "Initial Provisions".  Paragraph 12 recites the parties' core values and rights including a shared commitment to combat climate change which may or may not be reflected in this country's negotiations for a trade agreement with the USA.  Another shared commitment is maintaining a high level of data protection. The proposed partnership envisages future UK participation in some EU and Euratom programmes in cultural, scientific and other matters.

Part II concerns economics.  It should conform to the Agreement to establish the World Trade Organization and its policies for trade.  There should be free trade in goods, customs cooperation, trade facilitation and a measure of regulatory alignment.  Trade in services and the free flow of investment should be prioritized.  Intellectual property is mentioned specifically.  There are sections on financial services, competition, mobility of labour, transport cooperation and fisheries the last of which is likely to be particularly sensitive politically.

Part III covers security and addresses law enforcement and judicial cooperation, intelligence sharing, foreign policy coordination including sanctions, defence procurement, space, international development, refugees and infection control.

Part IV deals with institutional matters. Paragraph 155 proposes "a governing body responsible for managing and supervising the implementation and operation of the envisaged partnership, facilitating the resolution of disputes" Disputes that cannot be resolved through consultation should be referred to arbitration with provision for the referral of points of EU law to be referred to the Court of Justice of the European Union. That provision has been criticized by some but it is hard to see an objection. It merely provides machinery to access the Court where none exists right now.   The tribunal will have its seat in a national jurisdiction with direct access to national courts on issues of national law.

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

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.

Brexit Briefing December 2019

Results of the 2019 General Election

Author Brythones

Licence CC BY-SA 4.0 

Source Wikipedia 2019 General Election

Jane Lambert

Having won the 2019 general election, the government has the votes to enable the European Union (Withdrawal Agreement) Bill to pass without substantial amendment. It is therefore likely that the United Kingdom will leave the European Union at 23:00 on 31 Jan 2020 upon the terms of the draft withdrawal agreement of 19 Oct 2019.  I discussed the Bill in European Union (Withdrawal Agreement) Bill Second Time Round on 22 Dec 2019 and the agreement in The Revised Draft Withdrawal Agreement and Political Declaration on 21 Oct 2019.

While that is not the outcome for which many businesses, politicians and individuals had hoped and campaigned since the 2016 referendum, it does at least bring certainty.  The UK's departure from the EU on 31 Jan 2020 will be followed by an 11 month implementation period during which EU law will remain in force at the end of which there will be a new relationship with the 27 remaining EU member states. The precise nature of that relationship is not yet clear but the parties have agreed a Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom.

Clause 33 of the Bill will insert a new s.15A into the European Union (Withdrawal) Act 2018 which will prevent ministers from agreeing to any extension of the implementation period. Previous free trade agreements between the EU and third countries have taken years to negotiate.  While there is nothing to prevent negotiations on a new relationship between the UK and EU from continuing after the 31 Dec 2020 the legal framework between the parties that is to be preserved by the withdrawal agreement will fall away at the end of this year unless something is agreed to continue or replace it.  That could be just as disruptive for businesses and individuals in the UK and the remaining member states as British withdrawal from the EU without a withdrawal agreement would have been.

Over the coming months, this publication will monitor negotiations between the UK and EU on the future relationship.  It will report changes in the law, particularly those relating to intellectual property. It will look out for any opportunities that may arise from the UK's departure from the EU such as new trade agreements with the USA and other countries.

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