The Northern Ireland Protocol: The Windsor Framework

Author Maximilian Dorrbecker Licence CC BY-SA 2.5   Source Wikimedia Commons

 

Jane Lambert

One of the provisions of the settlement that ended the inter-communal violence in Northern Ireland was that there should be no immigration controls or customs posts between Northern Ireland and the Irish Republic.  There was no problem in complying with that provision so long as the United Kingdom and the Republic remained members of the European Union. When HM government made clear that the United Kingdom would leave not only the EU but also the single market and customs union there was a risk that the Irish Republic would have to restore border controls in order to maintain the integrity of the European single market. 

There were two ways of preventing that outcome:

• the whole UK could continue to abide by at least some of the single market rules;  or
• Northern Ireland could remain in the single market but there would be customs checks between Great Britain and Northern Ireland.

Mrs May proposed the first course believing that no British Prime Minister would countenance a border between two parts of the United Kingdom but her party failed to support her. Her successor opted for the second which was supported by the party. The option was eventually incorporated into 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 as the Protocol on Ireland/Northern Ireland.

The difficulties that Mrs May had anticipated quickly occurred.  As I noted in British Proposals for Renegotiating the Northern Ireland Protocol on 29 July 2021:

"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."

The British government's objections to the Protocol were set out in the position paper, Northern Ireland Protocol: the way forward (CP 502).  The administration of the previous Prime Minister but one introduced legislation into the House of Commons which would have required courts and civil servants to disapply those provisions of the Protocol to which the government objected.  In response, the European Commission indicated that it was prepared to negotiate changes to the Protocol and its application which would meet at least some of the British government's objections while reserving its right to bring non-compliance proceedings should the government continue on its course.

Such negotiations were begun by the administration of the former Prime Minister but one and were continued by his successors. They have resulted in the release of a flurry of documents from the UK and the Commission on 27 Feb 2023 which are referred to collectively as "the Windsor Framework."  Probably the most important of those documents is the Windsor Political Declaration by the European Commission and the Government of the United Kingdom which sets out the understanding of the British government and the Commission to change the operation of the Protocol.  The declaration is not a treaty but a statement of the parties' intentions.   It will have to be implemented by legislation in both the UK and the EU.

One of the other documents released by HM government is  The Windsor Framework: A New Way Forward presented to Parliament by the Prime Minister at the command of the King.  That sets out the British government's explanation and amplification of the Political Declaration and its arguments in favour of it.  The equivalent document from the Commission is a fact sheet which can be downloaded from The Windsor Framework: a new way forward for the Protocol on Ireland/Northern Ireland on the Commission's website.

The Windsor Framework is not a done deal.  Scepticism has been expressed by some politicians in England and Northern Ireland. However, the Labour Party has offered to support the government in passing implementing legislation which should enable it to outvote any opposition from Conservative and Ulster Unionist MPs.

As this is primarily an intellectual property blog I do not propose to chronicle the implementation of the Framework. However. it does mark an improvement in relations between the UK and EU which should facilitate British participation in Horizon Europe.   Such participation should result in inventions in the UK.  This is the most encouraging news that I have been able to report since I set up this publication.   Anyone wishing to discuss this article with me may call me on +44 (0)20 7404 5252 during British office hours or send me a message through my contact form.

The Draft EU-UK Trade and Cooperation Agreement: What We Know So Far

Jane Lambert

The European Commission has just published the full text of the draft EU-UK Trade and Cooperation Agreement on its website.  Accompanying that draft are a draft EU-UK Security of Information Agreement, a draft EU-UK Civil Nuclear Agreement and draft EU-UK Declarations. Also worth reading are the Commission's press release of 24 Dec 2020, a Q & A on the draft agreement and a checklist entitled Big changes compared to benefits of EU membership which can be downloaded here.  On Christmas Day, the British government published a 34-page summary of the agreement and a statement from the Prime Minister.

.To understand the agreement it is necessary to refer to art 50 (2) of the Treaty of European Union:

"A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union."

The agreement that set out the arrangements for withdrawal was, of course, the Withdrawal Agreement (Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community). It was concluded in January and implemented by the European Union (Withdrawal Agreement) Act 2020. 

Some of the provisions of the Withdrawal Agreement such as those governing the transitional or implementation period in which EU law continues to apply to the UK will lapse at 23:00 on 31 Dec 2020.  Other provisions such as those governing intellectual property or Northern Ireland will continue indefinitely.  The framework for the UK's future relationship with the EU was the Political Declaration setting out the framework for the future relationship between the European Union and theUnited Kingdom ("the Political Declaration"). The EU-UK Trade and Cooperation Agreement is intended to govern the UK's relationship with the EU from the end of the implementation period at 23:00 on 31 Dec 2020 in accordance with the Political Declaration.

The draft trade and cooperation agreement is 1,246 pages long and consists of the body and a very large number of annexes.   The body is just under 400 pages long and is divided into 7 Parts subdivided into Titles and in some cases further divided into chapters.  The remaining pages are the annexes.

The structure of the body is as follows:

• Part One: common and institutional provisions in the Agreement; 
• Part Two: trade and other economic aspects of the relationship, such as aviation, energy, road transport, and social security; 
• Part Three: cooperation on law enforcement and criminal justice; 
• Part Four:  thematic issues, notably health collaboration; 
• Part Five: participation in EU Programmes,
• Part Six: dispute settlement; 
• Part Seven: final provisions.

The most important economic provisions appear to be in Part Two. Title 1 of Part 2 covers trade in goods and Title II trade in services.  Services that are covered in this title include telecoms, financial services and legal services.  Provision is also made in Part Two for digital trade, capital m movements and intellectual property.

Because of the sheer length of the document, it will take me some time to read and digest it.  Anyone wishing to discuss this article or brexit generally may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact page.  I take this opportunity of wishing all my readers a happy New Year.

Brexit Briefing September 2020

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Jane Lambert

The event for which September 2020 will be remembered was the introduction of the United Kingdom Internal Market Bill    Why the Bill was needed at all or at any rate while negotiations on the new partnership with the European Union are at a critical stage is far from obvious.  As I said in The United Kingdom Internal Market Bill  19 Sept 2020 "my first impression on reading through this bill was that there was nothing in it that did not already fall within the scope of existing legislation except perhaps Part 5."

As even Nigel Farage could see, a stiff response from the European Commission was to be expected and perhaps even justified:

Forget Theresa May and Michael Howard - Johnson's conduct is now making even Nigel Farage seem sensible and reasonable https://t.co/llqrXJHVLi

— david allen green (@davidallengreen) October 1, 2020

If the UK is to leave the customs union and single market and the Republic of Ireland is not, there have to be customs controls at the border between the Irish Republic and Northern Ireland unless it is placed somewhere else. The only other place they could be located is between the ports of Great Britain and Northern Ireland.  That is what Mrs May said no British Prime Minister could ever do.

It seems unlikely that this difficulty was not foreseen by Mr Johnspn or members of his party when they voted for the European Union (Withdrawal Agreement) Act 2020 which ratified the Agreement on the withdrawal of the United Kingdom of Great Britain and Nothern Ireland from the EuropeanUnion and the European AtomicEnergy Community.  The only explanation that occurs to me is that the Messrs. Johnson, Gove and Lord Frost hoped to renegotiate the withdrawal agreement in the new partnership talks.

Since art 50 (2) of the Treaty on European Union required the negotiators to take account of the framework for the UK's future relationship with the EU which was supposed to be expressed in the Political Declaration, the EU negotiators were mandated only to flesh out the details of that framework.  That is the substance of their draft treaty of 18 March 2020.  When Johnson, Gove, Frost and company refused to consider that draft the talks became deadlocked allegedly on state aids, fishing and dispute settlement.

If that surmise is right the United Kingdom Internal Market Bill could have been intended to jolt the EU into making concessions.  The threat is that if nothing is done the Irish government will be forced to police the border with Northern Ireland that could lead to political instability in the Republic as well as (possibly but from the Briitish point of view much more affordably) in Northern Ireland.   If that is the tactic it is not clear that it will work for the Commission announced at 10:00 this morning the first step in taking legal action against the UK.  We should know fairly quickly for both sides agree that the middle of October is the cut-off point for ratification of any new partnership agreement by the parties' legislatures before the end of the year,

Other developments in September have been the Agreement in Principle on a Comprehensive Economic Partnership with Japan 12 Sept 2020, exploratory talks with the governments of the parties to the Comprehensive and Progress Agreement on the Trans-Pacific Partnership and continuing talks with the US government on a possible trade deal.

Anyone wishing to discuss this article or any of the issues discussed should call me on 020 7404 5252 during office hours or send me a message through my contact form.

British Intellectual Asset Owners' Rights after Brexit: IP Provisions of Bilateral Investment Treaties and Free Trade Agreements

Rt Hon Elizabeth Truss MP

Author  Chris McAndrew - Licence CC BY 3.0

Jane Lambert

Tomorrow I shall deliver a talk entitled  Bilateral Investment Treaties & Exporters' Rights Post-Brexit to the IP Law Summer School. I first gave that talk on 17 Aug 2017 a few months after Mrs Theresa May had served notice under art 50 (2) of the Treaty on European Union of the UK's intention to leave the EU and negotiations on the terms of its withdrawal were at a very early stage, I delivered an updated version of that talk on 15 August 2019 after the government had lost its majority.   At that time, there was uncertainty as to whether the UK would leave the EU with or without a withdrawal agreement or even whether the UK would leave the EU at all. 

It has become necessary for me to update my talk again because there has now been a general election at which the government secured a sufficient majority in the House of Commons to withdraw from the EU on the terms of the Agreement on the withdrawal of the United Kingdom of Great Britain and Nothern Ireland from the EuropeanUnion and the European AtomicEnergy Community ("the withdrawal agreement").  In accordance with art 50 of the Treaty, the government has also agreed to a Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom  ("the political declaration").   This country left the EU at 23:00 on 31 Jan 2020 and is now in a period of transition that is due to last until 31 Dec 2020 during which EU law continues to apply to the UK. The purpose of the transition period is to enable officials from the UK and EU to negotiate terms for a new relationship after the expiry of that period. In addition to its negotiations with the EU, the government is in negotiations with the governments of a number of other countries, notably Australia, Japan, New Zealand and the USA, for new free trade agreements.   It has also announced its intention to apply to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (see the Department for International Trade's update of 17 June 2020).

British businesses have benefited from this country's membership of the European Union in the following respects.  First, the substantive laws on copyrights, databases, designs, rights in performances, trade marks, trade secrets and supplementary protection certificates have been harmonized thereby facilitating their legal protection.  Secondly, it has become possible to protect brands, designs and plant varieties across the EU with EU trade marks and Community designs and plant varieties. Thirdly, the rights of EU intellectual asset holders including those from the UK have been extebded beyond Europe in the free trade and other agreements that the EU has made with third countries.  These benefits will come to an end on 31 Dev 2020   The purpose of tomorrow's talk is to consider the new environment for British business so far as it relates to intellectual property.

Some of the present arrangements will not change.   The UK will continue to be bound by the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") as it will remain a party to the Marrakesh Agreement Establishing the World Trade Organization.  Similarly, it will remain a member of the World Intellectual Property Organization ("the WIPO") and party to the Paris, Berne, Rome and other international intellectual property conventions to which it has already subscribed including the European Patent Convention and the Patent Cooperation Treaty.  Several countries that have negotiated free trade agreements with the EU have agreed to continue to trade with the UK on a similar basis.

As for the remaining member states of the EU, the withdrawal agreement contains a number of provisions that relate to intellectual property.   The political declaration binds the UK and EU as follows:

"42. The Parties should provide for the protection and enforcement of intellectual property rights to stimulate innovation, creativity and economic activity, going beyond the standards of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights and the World Intellectual Property Organisation conventions where relevant.
43. This should preserve the Parties' current high levels of protection, inter alia, of certain rights under copyright law, such as the sui generis right on databases and the artists' resale right. Noting the protection afforded to existing geographical indications in the Withdrawal Agreement, the Parties should seek to put in place arrangements to provide appropriate protection for their geographical indications.
 44. The Parties should maintain the freedom to establish their own regimes for the exhaustion of intellectual property rights.
45. The Parties should establish a mechanism for cooperation and exchange of information on intellectual property issues of mutual interest, such as respective approaches and processes regarding trademarks, designs and patents."

Both the EU's draft agreement of 18 March 2020 and the British government's counter-proposals for a comprehensive free trade agreement of 19 May 2020 contain extensive provisions on intellectual property.

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership contains provisions against expropriation of investments and dispute resolution provisions that are similar to those found in the bilateral investment treaties that the British government has negotiated with a number of countries.  Such provisions entitle individual investors to seek compensation from a national government for the expropriation of their investment which could possibly include the revocation of patents or the loss of an opportunity to market products by reference to a trade mark because of a public health concern. Any free trade agreement that is likely to be negotiated with Australia, Japan, New Zealand and the USA can be expected to contain similar provisions.

Anybody wishing to discuss this article or any of its issues should contact me on +44 (0)20n 7404 5252 during office hours or send me a message through my contact form.

Barnier's Speech to the EESC - Some Uncomfortable Home Truths

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Jane Lambert

On 10 June 2020, Michel Barnier, the Head of the Commission's Task Force for Relations with the UK, delivered an important speech to the plenary session of the European Economic and Social Committee ("EESC"). The reason it is important for business in the UK is that it spells out the limits to the concessions that the EU can afford in its negotiations with the British government for a new relationship.  The speech has not attracted much attention from British politicians or media, possibly because the first and perhaps more important part was delivered in French.

Before considering the speech it is worth considering the audience to which it was delivered.  The EESC's website describes the Committee as "the voice of organised civil society in Europe."  The EESC is established by art 300 (1) of the Treaty on the Functioning of the European Union to assist the European Parliament, Council and Commission in their functions.  Art 300 (2) provides that the EESC "shall consist of representatives of organisations of employers, of the employed, and of other parties representative of civil society, notably in socio-economic, civic, professional and cultural areas." The institutions are required to consult it when considering new legislation.  Monsieur Barnier began his speech by saying that for his part he regards the EESC as an important partner in the new relationship negotiations because brexit has consequences for the unions, businesses and citizens that the Committee represents.

He expressed the wish to build a solid partnership with the UK which he described as a "great neighbouring country, friend and ally" and that such a partnership was more necessary than ever in the present economic and geopolitical circumstances.  He acknowledged the history, values and interests that the UK shared with the rest of Europe. His aim was to secure an agreement - but not at any price.  The UK no longer wishes to be a partner in the European project and is positioning itself as a competitor. Monsieur Barnier acknowledged that there is nothing wrong with competition so long as that competition is fair and equitable.  The negotiations over the last 4½ months have been essentially over where to strike a balance between the ambition for a new partnership and the reality that the UK is now a competitor. Because of the size of its economy and geographical proximity, the UK cannot be compared to countries like Canada, Japan and South Korea,  For that reason, it cannot expect a similar free trade agreement.

The negotiations which have been conducted by video conference concurrently on all topics have hit four stumbling blocks, namely:

• the need for a level playing field
• fishing
• judicial cooperation in criminal matters, and
• future governance of the relationship.

Some progress has been made on those matters but not much.

Monsieur Barnier was disappointed by the UK's lack of commitment in foreign and defence matters, measures against money laundering and cybercrime, and parliamentary and other consultation on matters relating to free movement and social inclusion even though they were included in the Political Declaration which was signed by Boris Johnson.  The EU was not asking for anything more than had already been agreed.

The negotiations are now at a crunch point because important deadlines are approaching. The Britsih government has refused any extension to the transition period even though the EU is willing to agree to one.  On the assumption that there will be no extension, Monsieur Barnier had proposed intensification of negotiations to David Frost to make the best use of the time remaining.

However, his negotiating mandate required any agreement to be fair and equitable in relations to competition.  The terms that had been offered went much further than previous agreements with third countries and covered not just goods but services and investments.  The EU could not allow access to its market of 450 million without cast-iron guarantees of a level playing field.  On this point, he is willing to seek compromises but he was not willing to renegotiate points that had already been agreed in the Political Declaration.

The rest of Monsieur Barnier's speech is in English and contains some uncomfortable home truths.

There can be no cherry-picking of single market benefits.  The UK's financial and professional services industries have done very well out of EU membership.  The country has also benefited from being a certification and regulatory hub and entry point for the single market.  He gave the following warning:

• "Do we really want to consolidate the UK's position as a certification hub for the EU, knowing that it already controls some 15%-20% of the EU certification market?

• Do we really want to take a risk with rules of origin that would allow the UK to become a manufacturing hub for the EU, by allowing it to assemble materials and goods sourced all over the world, and export them to the Single Market as British goods: tariff- and quota-free

• Do we really want the UK to remain a centre for commercial litigation for the EU, when we could attract these services here?"

He added:

"When considering our options, we need to look beyond the short-term adaptation costs, to our long-term economic interests.
Even more so in the context of ensuring Europe's economic recovery after the Coronavirus crisis."

Referring no doubt to Mr Frost's letter of 19 May 2020 which I mentioned in Better Late than Never - The UK Counter Proposals in the New Relationship Negotiations 19 May 2020, Monsieur Barnier said that the UK insists that it is asking for nothing more than well-established precedents but the truth is that, in many areas, it is demanding a lot more than Canada, Japan or any other free trade agreement partners.  In many areas, it is looking to maintain the benefits of being a member state without the obligations of membership.  He gave the following examples:

• "To maintain almost complete freedom of movement for short-term stays for UK service providers;

• To maintain a system for the recognition of professional qualifications that is as complete and broad as the one we have in the European Union;

• To have its customs rules and procedures recognised as equivalent, while refusing to commit to the necessary compliance checks and monitoring, or alignment to EU rules where necessary.

• To be able to co-decide with the Union on decisions relating to the withdrawal of equivalences for financial services, when they know these are – and must remain – our own, autonomous decisions."

He emphasized that the UK chose to become a third country and cannot have the best of both worlds. The concessions sought by the UK are not in the long term interests of the EU.  Provisions in earlier free trade agreements were the result of negotiations and cannot be extended automatically to an agreement with the UK.  No free trade agreement can ever be as good as EU membership.

Monsieur Barnier also warned of some of the consequences of leaving the EU that will come about on 1 Jan 2021 whatever the outcome of the new relationship negotiations:

• "UK firms will lose the benefit of the financial services passports.

• As a third country, the UK will no longer be able to grant marketing authorisations for pharmaceuticals or type-approvals for cars for the EU market.

• There will be customs formalities for all goods entering the EU customs territory.

....... No FTA – no matter how ambitious – can change this."

He expressed the EU's position as follows:

"Simply: we will never compromise on our European values or on our economic and trade interests, to the benefit of the British economy."

Replying to criticisms that the EU's positions are unreasonable, he said:

• "But they are only unreasonable for those who refuse to accept that Brexit has negative consequences for the UK.

• They are only unreasonable if your starting point is that the EU should not have the sovereign power to define its own conditions for giving access to its own market."

In his view, member states were unlikely to change his negotiating mandate and any new partnership agreement would also be contingent on the UK's implementation of the withdrawal agreement, particularly with regard to Northern Ireland and citizens' rights.

Monsieur Barnier hoped that expected high-level discussions with the Prime Minister would provide a new political impetus to the talks.  Discussions between the Prime Minister and Presidents of the Council, European Parliament and the Commission did indeed take place on 15 June 2020.   A communique issued by the Commission on 15 June 2020 accepted the recommendations for intensified negotiations but also emphasized the need for full and timely implementation of the withdrawal agreement.

I have added Monsieur Barnier's speech and the Commission's communique and this article to my page on the future trade negotiations with the EU.  As it seems to me that regardless of the outcome of those negotiations there will be a need to develop new markets, I have updated my page on negotiations with Japan and opened new pages on negotiations with Australia and New Zealand.  Although relations with China have deteriorated lately I hope that British firms may still win some business from the Belt and Road initiative. I have therefore opened a Belt and Road Initiative page.  If British financial services firms lose business in the EU as a result of a loss of passporting rights one possible new market is the Astana International Financial Centre in Kazakhstan which I mentioned in An English Language Common Law Court in Kazakhstan 10 June 2020 NIPC Law. That Centre is modelled on similar financial centres in Abu Dhani, Dohar and Dubai which I cover in NIPC Gulf.

Anyone wishing to discuss this article or any of the topics mentioned in it should call  my clerk Stephen Somerville on +44(0)7986 948267 or send me a message through my contact page

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.

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 UK's Future Relationship with the EU - The Commission sets out its Negotiating Position

Michel Barnier

Author Foto-AG Gymnasium Melle
 Licence CC BY-SA 3.0
Source Wikimedia Commons

Jane Lambert

I have updated my pages on the European Union (Withdrawal Agreement) Bill which will ratify the draft agreement of 19 Oct 2019 on the terms of the United Kingdom's withdrawal from the European Union and the negotiations on the UK's future relationship with the EU in accordance with the political declaration.  The bill completed its committee stage in the Lords and I have linked to the reports of the debates in Hansard.  In the future relationship page, I have inserted links to the Commission's and the British government's press releases on Mr Johnson's meeting with President von der Leyen in London on 8 Jan 2020, transcripts of the President's press conference with the Irish Taoiseach or prime minister and Monsieur Michel Barnier's speech at the European Commission's representation in Stockholm on 9 Jan 2020.

In his speech, Monsieur Barnier described the withdrawal agreement as a kind of divorce:

"We have now organised an orderly divorce. But now, the UK will automatically, mechanically, legally, leave 600 international agreements.
And we will have, together – EU and UK, and the UK for its part, alone – to rebuild everything. That is what is at stake for the next stage of the negotiations.
So we have a huge amount of work ahead of us if we are to secure an ambitious new partnership between the EU and the UK."

He warned:

"If we fail, the transition period will end on 1 January 2021 without any arrangements for a new future relationship in place.

• This would not affect the issues covered in the Withdrawal Agreement: the financial settlement, and, thankfully, the deal we have reached on the island of Ireland and on citizens would still stand.

• But it would mean the return of tariffs and quotas: a total anachronism for interconnected economies like ours."

So, the European Commission is already preparing for the negotiations and has prepared documents on its position on

• transport,  
• energy 
• level playing field and sustainability 
• fisheries 
• a free trade agreement, and
• data protection.

I shall be discussing some of those documents - in particular, those relating to intellectual property and data protection - in more detail in this and related publications over the next few months.

In his Stockholm speech, Monsieur Barnier said:

"Yes, the UK represents 9% of all EU27 trade.
But more significantly, the EU27 accounts for 43% of all UK exports and 50% of its imports.
So, it is clear that if we fail to reach a deal, it will be more harmful for the UK than for the EU27.
All the more so because EU Member States can rely on each other or on the many other partners that the EU has free trade agreements with."

It is important to note that the EU did not cave in to British demands over Northern Ireland.  It was, as the DUP have said many times, the other way round.

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

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. 

The Revised Draft Withdrawal Agreement and Political Declaration

SRt Hon ir Kier Starmer QC MP

Author Chris McAndrew
Licence Parliamentary  Digital Service
Source Wikipedia Kier Starmer 

Jane Lambert

Although I have my views on brexit just like everybody else, I try to keep them to myself in this blog.  Here I discuss the legal issues arising out of our decision to withdraw from the European Union, particularly for the startups and small and medium enterprises that I advise and represent.

On Thursday 19 Oct 2019, the government published the draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northen Ireland from the EuropeanUnion and the European Atomic Energy Community and the draft Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom.  These can be compared with the draft agreement and the political declaration of 14 Nov 2018.

I have not yet had time to go through those drafts provision by provision and in view of the political uncertainties, I am not sure that it would be a good use of my time if I did.  But the Ri Hon Sir Kier Starmer QC MP, the shadow secretary of state for exiting the European Union, and his assistants clearly have done for he delivered a comprehensive forensic critique of the draft instruments in the Commons on Saturday (see  Keir Starmer blasts holes in blasting holes in "Government’s damaging plans, a trap-door to no-deal" ProductiehuisEU YouTube 19 Oct 2019).  The government has promoted the 19 Oct draft agreement as an achievement but from the little I have read of it, it seems to have been the result of concessions particularly over Northern Ireland.  Readers can, of course, make up their own minds from the links in this article.

Anyone wishing to discuss this article or brexit generally may call me on 020 7404 5252 during office hours or send me a message through my contact page.

Geographical Indications after Brexit

Stilton Cheese

Author: Dominik Hundhammer
Licence: Creative Commons Attribution-Share Alike 3.0 unported

Source Wikipedia  Commons

Jane Lambert

A geographical indication is a sign used on products that have a specific geographical origin and possess qualities or a reputation that are due to that origin.  Examples include Cornish pasties, Scotch whisky and, of course, Stilton cheese (see HM Government Protected Food Scheme: UK registered products 15 Jan 2014). The UK is bound to protect such signs by art 22 of the Agreement on Trae-Related Aspects of Intellectual Property Rights ("TRIPS") and art 10bis  of the Paris Convention for the Protection of Industrial Property.

HM Government discharges those obligations by

• collective and certification marks;
• the extended action of passing off; and
• special European Union legislation for agricultural farm products and foodstuffs and wines and spirits.

The special EU legislation is 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 14.12.2012.

If and when the UK ever leaves the EU, Regulation 1151/2012 will cease to apply to the UK except in so far as, and to the extent that, it is caught by s.3 of the European Union (Withdrawal) Act 2018.  The draft withdrawal agreement of 14 Nov 2018 provided for EU law, including that regulation, to continue to apply to the UK from the exit date to the 31 Dec 2020. Thereafter art 54 (2) of that agreement provided for at least the same level of protection to continue to apply to products registered under regulation 1151/2012 from 31 Dec 2020 without any re-examination. Paragraph 45  of the political declaration on the future relationship between the EU and UK noted the protection afforded to existing geographical indications in the withdrawal agreement and required  the UK and EU to  seek to put in place arrangements to provide appropriate protection for their respective geographical indications.

Unless the British government revokes its notification of intention to leave the EU of 29 March 2017 before 31 Oct 2019 (or the expiry of such further extension to the notice period as may be agreed by the UK and remaining member states) this country must implement its own scheme for protecting geographical indications before 31 Oct 2019 or 31 Dec 2020 at the latest. The Department for the Environment, Food and Rural Affairs ("DEFRA") has already held consultations on establishing a UK geographical indications scheme after brexit and the enforcement of what it calls "the protected food name scheme". There is as yet no draft legislation but DEFRA has published Guidance on protecting food and drink names if there's no Brexit deal, 

The guidance states that the UK will set up its own geographical indications scheme which will be managed by DEFRA. The department will maintain a register of protected products and process new applications. The new UK scheme will use the same classes as the current EU one, namely:

• Protected Designation of Origin (PDO)
• Protected Geographical Indication (PGI), and
• Traditional Specialities Guaranteed (TSG).

Local authority trading standards officers will enforce the legislation.

All existing UK products registered under the EU scheme will automatically get UK status and remain protected in the UK. Food and drink producers from the UK and abroad will be entitled to apply for protection in accordance with advice to be published by DEFRA in October. DEFRA will design a new set of logos for each of the above classes which may be used by British and overseas food producers alike.

British products will continue to be protected by EU legislation and the legislation of third countries with which the EU has a trade agreement if the UK leaves the EU in accordance with the draft withdrawal agreement or possibly such other agreement as may be negotiated.  The guidance warns that that may not happen if the UK leaves without a withdrawal agreement in which case British food and drink producers will have to reapply to the Commission for EU geographical indication protection or some other form of protection such as a certification or collective EU trade mark,

Anyone wishing to discuss this article or geographical indications generally should call me on 020 7404 5252 during office hours or send me a message through my contact form.

Brexit Briefing February 2019

Jane Lambert

This is the last Brexit Briefing before the two-year notice period provided by art 50 (3) of the Treaty on European Union runs out. We still do not know whether the UK will leave the EU on 29 March 2019, and, if it does leave, whether it will leave with or without the withdrawal agreement that the Commission and a departing state are supposed to negotiate and conclude by art 50 (2).

If Parliament approves the draft agreement of 14 Nov 2018 before the 29 March, EU law will continue to apply to the UK until 31 Dec 2020,  The agreement and the accompanying political declaration contain a number of provisions on IP which I discussed in  The Intellectual Property Provisions of the Draft Withdrawal Agreement 19 Nov 2018 and in my presentation to Sheffield Business and IP Centre on 6 March 2019. They will be implemented by a number of draft statutory instruments which I listed on slide 31 of that presentation.

If the government loses the forthcoming vote on the draft withdrawal agreement next week, it is possible (though perhaps not particularly likely) that Parliament will vote for an extension of the notice period or even revocation of the notification of the 29 March 2017.  An extension would have to be agreed by the remaining member states in accordance with art 50 (3) and they would have to be persuaded that there is a good reason to do so such as a second referendum which could lead to revocation of the notification. Should that happen there will be no change to our law at least until the extended notice period runs out.

The last possibility (and an increasingly likely one) is that time will run out without an extension or draft withdrawal agreement.  Were that to happen, legislation derived from EU directives will be saved by s.2  of the European Union (Withdrawal) Act 2018 and EU regulations would be incorporated into national law by s.3 mutatis mutandis pursuant to s.8.  The statutory instruments listed in slide 31 would then take effect from 23:00 on 29 March 2019.  Of course, there would be lots of other issues. The Senior Courts and their equivalents in Scotland and Northern Ireland would cease to EU trade mark and Community design courts and Regulation (EU) No 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters would cease to apply to the UK.

As I noted in my article of 19 Nov 2018, both the draft withdrawal agreement and the political declaration are silent on British participation in the Unified Patent Court. The government argues that the agreement to set up the Court is an international treaty outside the EU legal order and that the UK could remain a party to the agreement even if it leaves the EU without a withdrawal agreement.  For the reasons set out in my presentation, I regard that argument as unrealistic.

Anyone wishing to discuss this article or brexit and intellectual property, in particular, should call me on 020 7404 5252 during office hours or send me a message through my contact page.