Costa Bravo - The Barclay-Barnier Letters

1/5 Following the House of Commons unanimous support for my amendment seeking to protect the rights of millions of UK citizens in the EU and EU citizens in the UK, my letter to European Council President @eucopresident. #CostaAmendment pic.twitter.com/IX8K7QAKvN

— Alberto Costa MP (@AlbertoCostaMP) March 1, 2019

Jane Lambert

The Department for Exiting the EU has published a series of letters between the Rt Hon Steve Barclay MP and Michel Barnier on Alberto Costa MP's proposal that requires HM Government to seek a joint UK/EU commitment to preserving the citizens’ rights section of the draft withdrawal agreement whatever the outcome of the brexit negotiations.

By a letter dated 4 March 2019 to Monsieur Barnier, Mr Barclay explained the proposal, acknowledged that the Commission had already made a statement on the matter but requested  Monsieur Barnier's "formal views on our Parliament's proposal.

Monsieur Barnier responded on 25 March 2019. He began by stating that safeguarding the rights of citizens affected by the UK's withdrawal from the EU had been a top priority for the EU from the start and that the draft withdrawal agreement provided those safeguards.  He said that he was familiar with the proposal having received a copy of Mr Costa's letter to Donald Tusk from Mr Costa himself. However, he found it hard to reconcile the proposal with Parliament's vote of 13 March 2019 not to leave the EU without a deal. He stressed that the draft agreement was a fair compromise and the best and only deal possible.  As the provisions on citizens' rights were mixed up with other provisions such as the continued jurisdiction of the Court of Justice on certain matters, it was impossible to see how the rights provisions could be severed from the rest.  If the UK left the EU without a deal, the member states would continue to treat British nationals fairly.

There matters stood until 17 June 2019 when Mr Barclay had another go,  He said that there was growing support for the proposal in the UK and other member states, particularly among those representing the persons affected.  He invited Monsieur Barnier to think again.

Monsieur Barnier responded the very next day. He firmly believed that an orderly exit from the EU in accordance with the withdrawal agreement remains the best outcome for both the UK and the EU. If the UK leaves without a deal, the EU and its member states "would act in a responsible way through unilateral measures." These had already been set out in the Commission's Communication of 12 June 2019. The Commission noted in that document:

"In a ‘no-deal' scenario, the UK will become a third country without any transitional arrangements. All EU primary and secondary law will cease to apply to the UK from that moment onwards. There will be no transition period, as provided for in the Withdrawal Agreement. This will obviously cause significant disruption for citizens and businesses and would have a serious negative economic impact, which would be proportionally much greater in the United Kingdom than in the EU27 Member States."

It is unusual for negotiations of this kind to be conducted in writing or for such correspondence to be published. The British government must intend the general public and, in particular, British nationals and residents to read the letters. Is it cynical to suppose that the ground is being prepared for a blame game after 31 Oct?

Anyone wishing to discuss this post or brexit, in general, should call me on 020 7404 5252 during office hours or send me a message through my contact form.

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 - May 2019

In which @RoryStewartUK explains how terrible “no deal” is pic.twitter.com/wDxZtuJIOb

— Rupert Myers (@RupertMyers) May 30, 2019

In one sense a lot has changed since the last Brexit Briefing.  Mrs May has announced that she will cease to be the leader of the Conservative Party on the 7 June 2019.  Elections have been held for the European Parliament at which the Brexit Party appeared to have the largest vote but the total votes of the parties opposing brexit were greater than the total votes of the Brexit Party, UKIP and the Conservatives. In another sense, very little has changed for the options are still the same as they have always been.

The UK can leave the EU on 31 Oct 2019 and face massive tariffs and restrictions on its exports in its largest market that are faced by none of its major competitors inside and outside the EU. It can stay which mean that we retain unrestricted market access but would disappoint a lot of people who voted for the Brexit Party, UKIP, the Conservatives and perhaps the Labour Party in the recent elections. Or we can take the deal of the 14 Nov 2019 which Parliament has rejected numerous times.  The chances of negotiating another with governments that regard no deal as less damaging to their interests than one for which at least some of the Tory party leadership hopefuls lobby seem forlorn to say the least,

The advice that I have given to businesses in the UK remains substantially the same as it has been for over a year.  There is no certainty as to which of those options will be taken.  Businesses that can transfer their manufacturing and service facilities from the UK should continue to do so.  Those that cannot, should do the best they can by stockpiling, developing goods and services that will still be competitive even with discriminatory tariffs and other restrictions and they should look for new markets wherever they can be found.

I suppose one thing that should be mentioned is that the decision to issue a summons in a private prosecution against Tory leadership front runner, Boris Johnson MP, has been criticized vehemently in some quarters.  I am not going to enter the discussion because the matter is sub judice but I will put a link to the District Judge's decision so that readers can judge for themselves as to whether it was well reasoned and properly considered.

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

Is there a Convention that a Referendum binds Parliament?

Standard YouTube Licence


Jane Lambert

A tenet of our constitution is that no Parliament can bind its successors. Another is that MPs are representatives and not delegates.  Nothing in the European Union Referendum Act 2015 required the government to implement the vote but, even if it had, it would not have been effective because there has been a general election since then.  There is nothing in law to prevent the legislature from repealing a statute providing for a referendum as easily as it could any other.

So where do Mrs May and many others in her party find support for her curious notion that Parliament is under an obligation to deliver brexit?  Could it be an emerging convention?   If so, it is a very recent one as we have only had three referendums since 1975.  When Winston Churchill proposed a referendum on extending the life of the wartime parliament until victory over Japan, Clement Atlee replied:

"I could not consent to the introduction into our national life of a device so alien to all our traditions as the referendum which has only too often been the instrument of Nazism and Fascism."

Some have argued that the sheer number of votes in favour of brexit give the 2016 referendum a special status.  Perhaps but it is worth remembering that almost exactly the same number voted for the Nazi party in the 1933 Reichstag elections (see March 1933 German federal election Wikipedia).

Parliament has ignored referendum results before even when the majority was overwhelming,  Some 66% of the Western Australian electorate voted for the secession of their state from Australia in 1933. The implementation of that decision required the approval of the UK Parliament because the Australian constitution was then a British statute. Westminster refused to consider secession as I noted in The Western Australian Secession Referendum - A Precedent for Dealing with Troublesome Referendums? 17 Dec 2018 which was probably for the best in view of the war with Japan a few years later (see Sometimes it is a Good Thing to ignore Referendums 19 Dec 2018).

At best the so-called duty can only be a political one arising from the 2015 Conservative election manifesto. There is no reason why anyone else should feel bound to deliver brexit unless they want to do so.  Anyone wishing to discuss this article or brexit, in general, should call me on 020 7404 5252 during office hours or send me a message through my contact page.

Brexit Briefing April 2019

Author Gustave Doré

"Day after day, day after day,

We stuck, nor breath nor motion;

As idle as a painted ship

Upon a painted ocean"

Jane Lambert

In the first paragraph of my January Brexit Briefing 5 Feb 2019 I set out four possible scenarios for what could happen before 29 March 2019. The one that occurred was the third of those possibilities:  an extension of the notice period first to 12 April 2019 (see Extension of Art 50 (3) Notice Period 27 March 2019) and subsequently to 31 Oct 2019 (see European Council Decision of 11 April 2019 extending the Period under art 50 (3) of the Treaty of European Union to 31 Oct 2019 11 April 2019).

The uncertainty from which there has been something of a lull since the second extension has been at a cost.   Businesses fearing delays and increased costs in the event of the UK's departure from the EU without a withdrawal agreement stockpiled raw materials and components leaving fewer resources for anything else.  IHS Markit manufacturing purchasing managers’ index dropped from 55.1 to 53.1 in April and demand for exports fell as customers sought alternatives to British suppliers (see IHS/CIPS news release of 1 May 2019).

Uncertainty as to whether the UK will depart from the EU at all and if so on what terms is naturally unsettling for business but that does not require everything to be put on hold. There are opportunities for British business regardless of what happens with brexit. Only last week, heads of state, heads of government and senior ministers met in Beijing for The Second Belt and Road Forum.  I first mentioned the One Belt One Road project in The Shanghai Cooperation Organization on 9 Sept 2017. It is a massive transport infrastructure project to link China more closely with the rest of the world.  As such, it will provide unparalleled opportunities not just for British construction companies and manufacturers but also for the UK's banks and other financial and professional service providers.

The climate change protests in central London and Edinburgh and the visit of Greta Thunberg to the Houses of Parliament have raised public awareness of the need to reduce carbon emissions drastically in the next 30 years.  This will require changes in transportation, housing, agriculture and many other fields that will provide opportunities for enterprising and innovative British companies. This is not the time for industry to cut back on R & D and marketing but to expand it.

Anyone wishing to discuss this article or the legal issues to any of the topics mentioned in it should call me on 020 7404 5252 during office hours or send me a message through my contact page.

European Council Decision of 11 April 2019 extending the Period under art 50 (3) of the Treaty of European Union to 31 Oct 2019

Donald Tusk

Author Platformy Obywatelskiej

Licence Creative Commons Attribution-Share Alike 2.0

Source Wikipedia European Council 

Jane Lambert

Another of the uncertainties that I mentioned in my March Brexit Briefing was the outcome of the special Council meeting of 10 April 2019 which President Tusk called on 29 March 2019 after the draft withdrawal agreement of 14 Nov 2018  was rejected by the House of Commons for the third time.  The reason for the meeting was that the United Kingdom was due to leave the European Union at 23:00 on 12 April 2019.

Even before she was obliged to do so by s.1 of the European Union (Withdrawal) Act 2019, the Prime Minister applied for an extension of the notification of the period provided by art 50 (3) of the Treaty of European Union by a letter dated 5 April 2019.   The European Council referred to that letter in paragraph (8) of the recitals to its decision of 11 April 2019 extending that notice period to 31 Oct 2019 at the latest.

The decision consists of 14 paragraphs of recitals and 2 articles   Art 1 extends the notice period from 12 April 2019 to 31 Oct 2019. Art 2 inserts the condition of holding elections to the Europen Parliament on 22 May 2019 warning:

"This decision shall cease to apply on 31 May 2019 in the event that the United Kingdom has not held elections to the European Parliament in accordance with applicable Union law and has not ratified the Withdrawal Agreement by 22 May 2019."

As the Council also recited in paragraph (9):

"...... under Article 50(3) TEU, the Withdrawal Agreement may enter into force on an earlier date, should the Parties complete their respective ratification procedures before 31 October 2019. Consequently, the withdrawal should take place on the first day of the month following the completion of the ratification procedures or on 1 November 2019, whichever is the earliest. "

As several MPs had urged the British government to disrupt the EU's business if it were granted a long adjournment paragraph (10) of the recitals noted:

"This further extension cannot be allowed to undermine the regular functioning of the Union and its institutions. Furthermore, it will have the consequence that the United Kingdom will remain a Member State until the new withdrawal date, with full rights and obligations in accordance with Article 50 TEU, and that the United Kingdom has a right to revoke its notification at any time. If the United Kingdom is still a Member State on 23-26 May 2019, and if it has not ratified the Withdrawal Agreement by 22 May 2019, it will be under an obligation to hold the elections to the European Parliament in accordance with Union law. In the event that those elections do not take place in the United Kingdom, the extension should cease on 31 May 2019. The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union."

The decision  also made clear in paragraph (12) of the recitals that the withdrawal agreement could not be renegotiated:

"This extension excludes any re-opening of the Withdrawal Agreement. Any unilateral commitment, statement or other act by the United Kingdom should be compatible with the letter and the spirit of the Withdrawal Agreement, and must not hamper its implementation. Such an extension cannot be used to start negotiations on the future relationship."

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

European Union (Withdrawal) Act 2019

Our cross party Bill now has Royal Assent. Parliament has voted tonight against the damage & chaos that No Deal would cause for jobs, manufacturing, medicine supplies, policing & security. pic.twitter.com/WNn1TazsJw

— Yvette Cooper (@YvetteCooperMP) April 8, 2019

Jane Lambert

In my March Brexit Briefing, I wrote:

"Had all gone according to plan, this would have been my first post-exit day Brexit Briefing. However, the UK is still a full member of the European Union at least until 12 April 2019 on the terms that I mentioned in Extension of Art 30 Notice Period 27 March 2019. What happens after that will depend on the European Council meeting which shall take place on 10 April 2019, the current discussions between the Prime Minister and the Leader of the Opposition and the fate of the European Union (Withdrawal) (No 5) Bill in the House of Lords."

At least one of those uncertainties has been removed as the Bill cleared the Lords almost as quickly as it cleared the Commons. It has received royal assent and is now law.

The new statute, which is known as the European Union (Withdrawal) Act 2019, consists of three sections:

1. Duties in connection with Art 50 extension
2. Procedure for ensuring domestic legislation matches Art 50 extension
3. Interpretation, commencement, extent and short title.

S.1 (1) requires a Minister of the Crown to move the following motion in the House of Commons immediately after the Act receives royal assent:

“That this House agrees for the purposes of section 1 of the European Union (Withdrawal) Act 2019 to the Prime Minister seeking an extension of the period specified in Article 50(3) of the Treaty on European Union to a period ending on […]” 

If a motion in that form is passed without amendment, the PM must seek an extension to the date in square brackets.  The Minister can accept a different period provided it ends not earlier than 22 May 2019. In that regard, s.1 (7) provides:

"In deciding for the purposes of subsection (6) whether an extension cannot end earlier than 22 May 2019, the earlier ending of the extension as a result of the entry into force of the withdrawal agreement (as provided for in Article 50(3) of the Treaty on European Union) is to be ignored."

S.20 (1) of the European Union (Withdrawal) Act 2018 had defined "exit day" (the date upon which the UK leaves the EU) as "29 March 2019 at 11.00 p.m" subject to s.20 (2) to (5).  Those subsections set out a procedure for amending the definition of "exit day" by statutory instrument,  However, para 14 of Sched 7 to the 2018 Act had provided:

"A statutory instrument containing regulations under section 20( 4) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament."

S.2 of the 2019 Act amends paragraph 14 by removing the words from "may" to "each" and substitutes the words "is subject to annulment in pursuance of a resolution of either”.    The paragraph now reads:

"A statutory instrument containing regulations under section 20 (4) is subject to annulment in pursuance of a resolution of either House of Parliament."

S.3 (1) provides for the Act to come into force as soon as it receives royal assent.

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

Brexit Briefing March 2019

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Jane Lambert

Had all gone according to plan, this would have been my first post exit day Brexit Briefing.  However, the UK is still a full member of the European Union at least until 12 April 2019 on the terms that I mentioned in Extension of Art 30 Notice Period 27 March 2019.  What happens after that will depend on the European Council meeting which shall take place on 10 April 2019, the current discussions between the Prime Minister and the Leader of the Opposition and the fate of the European Union (Withdrawal) (No 5) Bill in the House of Lords. 

Since the last Brexit Briefing, there has been a massive demonstration for a second referendum on the streets of London (see Brexit march: Million joined Brexit protest, organisers say 23 March 2019 BBC website) and 6,061,092 individuals appear to have signed an online petition to revoke Mrs May's notification of intent to withdraw from the EU which she served on 29 March 2017.  President Tusk referred to those manifestations of support for the European Union in his address to the European Parliament which elicited the response from Richard Ashworth MEP shown above. These are but straws in the wind but it is probably fair to say that the danger of a Brit8ish departure from the EU without a withdrawal agreement has receded slightly and the prospects of remaining within the bloc either through a second referendum or a straightforward revocation have advanced slightly.

Both the European Union and the United Kingdom have been making preparations for the UK's departure from the EU without a deal,  According to the Commission's press release of 25 March 2019, the EU's preparations are complete and can be viewed on its Brexit preparedness website.  British preparations are continuing and those that have been made so far appear on the Prepare for EU Exit site.

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

Extension of Art 50 (3) Notice Period

Jane Lambert

In my January Brexit Briefing, I wrote that one of four things had to happen before 23:00 on 29 March 2019:

• ratification  of the draft withdrawal agreement; 
• revocation of the notification of 29 March 2017;
• an extension of the notification period; or
• withdrawal of the UK from the EU without an agreement.

The government chose the third of those options.   It applied to the European Council for an extension of the notification period.  The Council granted its application by a decision dated 22 March 2019.

The decision is a very short document.  It consists of 2 articles and 12 paragraphs of recitals.  The effective provision is art 1 which is divided into 2 paragraphs. The first paragraph of art 1 extends the notification period to 22 May 2019 provided that the House of Commons approves the draft withdrawal agreement by 29 March 2019.  If the Commons does not do so, the second paragraph extends the notification period until 12 April 2019 in which case "the United Kingdom will indicate a way forward before 12 April 2019, for consideration by the European Council."

The reason for the time limits is explained in para (10) of the recitals:

"This extension will have the consequence that the United Kingdom will remain a Member State with all the rights and obligations set out in the Treaties and under Union law. If the United Kingdom is still a Member State on 23-26 May 2019, it will be under the obligation to hold the elections to the European Parliament in accordance with Union law. It is to be noted that the United Kingdom would have to give notice of the poll by 12 April 2019 in order to hold such elections."

If the Commons fails to ratify the withdrawal agreement by 29 March 2018, the choices for the government are to leave the EU without a deal on 12 April 2019, seek a longer extension to the notification period which would require this country to participate in the European Parliament elections or revoke its notification of 29 March 2017.

A head of steam is building up for revocation of that notification as evidenced by the massive numbers who took place in the march on Saturday and the even larger numbers of signatories to the Revoke Article 50 and remain in the EU. The government's response has been shrill.  In an email to all signatories it wrote:

"This Government will not revoke Article 50. We will honour the result of the 2016 referendum and work with Parliament to deliver a deal that ensures we leave the European Union.

It remains the Government’s firm policy not to revoke Article 50. We will honour the outcome of the 2016 referendum and work to deliver an exit which benefits everyone, whether they voted to Leave or to Remain. 

Revoking Article 50, and thereby remaining in the European Union, would undermine both our democracy and the trust that millions of voters have placed in Government. 

The Government acknowledges the considerable number of people who have signed this petition. However, close to three quarters of the electorate took part in the 2016 referendum, trusting that the result would be respected. This Government wrote to every household prior to the referendum, promising that the outcome of the referendum would be implemented. 17.4 million people then voted to leave the European Union, providing the biggest democratic mandate for any course of action ever directed at UK Government.
British people cast their votes once again in the 2017 General Election where over 80% of those who voted, voted for parties, including the Opposition, who committed in their manifestos to upholding the result of the referendum. 

This Government stands by this commitment. 

Revoking Article 50 would break the promises made by Government to the British people, disrespect the clear instruction from a democratic vote, and in turn, reduce confidence in our democracy. As the Prime Minister has said, failing to deliver Brexit would cause “potentially irreparable damage to public trust”, and it is imperative that people can trust their Government to respect their votes and deliver the best outcome for them. 

Department for Exiting the European Union."

Be that as it may, the march and petition appear to have spooked at least some MPs into reconsidering their opposition to the draft withdrawal agreement.

Anyone wishing to discuss this article or brexit, in general, 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.

The Patents (Amendment) (EU Exit) Regulations 2018

Jane Lambert

In Patents if there’s no Brexit Deal 3 Oct 2018, I discussed the government's guidance Patents if there's no Brexit Deal 24 Sept 2018.  I wrote:

"With regard to patents and SPCs, the guidance notes that few areas of patent law derive from EU legislation. Pharmaceutical and agrochemical products are important exceptions in that SPCs provide an additional period of protection for those inventions after their patents run out. There are also special provisions for biotechnological inventions, compulsory licences for patented medicines and limitations to the scope of a patent monopoly to permit trials and tests and other activities. The note states that s.2 of the European Union (Withdrawal) Act 2018 will preserve the relevant EU legislation and s.3 will incorporate it into our law."

Supplementary legislation to preserve rights subsisting under EU regulations has now been drafted. pursuant to s.8 of the European Union (Withdrawal) Act 2018,

The draft legislation is known as The Patents (Amendment) (EU Exit) Regulations 2018,  There are 69 of those regulations divided into 8 Parts:

• Part 1 (reg 1) Introduction (citation)
• Part 2 (regs 2 - 4) Amendments to the Patents Act 1977
• Part 3 (reg 5) Amendments to the Copyright Designs and Patents Act 1988
• Part 4 (regs 6 - 17) Amendments to The Patents and Plant Variety Rights (Compulsory Licensing) Regulations 2002
• Part 5 (reg 18) Amendments to the Patent Rules 2007
• Part 6 (regs 19 - 36) Supplementary Plant Protection Certificates - Amendments to Reg (EC) No 1610/96
• Part 7 (regs 37 - 50) Compulsory Licensing of Pharmaceutical Patents - Amendments to Reg (EC) No 816/2006, and
• Part 8 (regs 51 - 69) Supplementary Protection Certificates for Medicinal Products - Amendments to Reg (EC) No 469.2009. 

The Patents and Plant Variety Rights (Compulsory Licensing) Regulations2002 (SI 2002/247) implement parts of Directive 98/44/EC on the legal protection of biotechnological inventions. The EU regulations on supplementary protection certificates are directly effective.

SPC (supplementary protection certificates) extend the monopoly granted by a patent for up to 5 years after the patent's expiry to make up for the time needed to obtain regulatory approval for the distribution of the patented invention.   To make sure that SPCs continue to be available, the statutory instrument replaces references to the EU and its institutions or member states with references to the UK, the Intellectual Property Office and other British organizations.

I shall mention this draft legislation at the 11th Annual Forum on Pharma Biotech Patent Litigation in Amsterdam, 26 and 27 Feb 2019. Anyone wishing to discuss this article, the draft statutory instrument or patents and brexit generally should call me on 020 7404 5252 during office hours or sending me a message through my contact form.