"Well at 20 minutes to five, we can now say the decision taken in 1975 by this country to join the Common Market has been reversed by this referendum to leave the EU... The British people have spoken and the answer is: 'We're out'."
It’s been 10 years since David Dimbleby uttered those famous words on the BBC, as it became clear that the United Kingdom had voted to leave the European Union. Four and a half torturous years passed before that decision took effect on 31 December 2020 (known as “IP Completion Day”, with IP meaning Implementation Period, not intellectual property), and five and a half years since then.
We were told that “Brexit means Brexit”, but what did Brexit mean for IP law? Many early attempts were made at reading the tea leaves, with practitioners and academics trying to pick up tiny hints from leading IP judges. However, we have now had enough decisions to form a reasonably clear picture of where the UK courts have aligned, and where they will and will not continue to align, with EU case law.
This post is the first of two addressing the various areas where the impacts have been felt, or not felt. It addresses the way in which the UK’s departure from the EU was implemented and the jurisdictional and enforcement issues that have arisen.
How Brexit was implemented
The UK’s membership of the EU was governed by the European Communities Act 1972. That statute gave primacy to EU law, and was repealed by the European Union (Withdrawal) Act 2018 (EUWA), subject to certain saving provisions. Those saving provisions included:
· Section 2, which preserved all EU-derived domestic legislation, such as the regulations implementing the IP Enforcement Directive;
· Section 3, which maintained all EU regulations on the UK statute book, such as the regulations governing SPCs and the Community Designs Regulation;
· Section 4, which preserved the direct effect of EU directives where the UK courts had, before IP Completion Day, been found to have direct effect;
· Section 6, which preserved the binding effect of CJEU judgments made before IP Completion Day, empowering only the UK Supreme Court and the High Court of Justiciary (Scotland’s highest criminal court) to diverge from those judgments (even where the facts predate IP Completion Day - Lipton & Anor v BA Cityflyer Ltd [2024] UKSC 24). Such divergence was permitted where “it appears right to do so” (1966 Practice Statement of the House of Lords). Courts were entitled to “have regard to” EU law post-dating IP Completion Day.
Section 6 was amended by the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020, to extend that power to depart from retained EU case law to the lower appellate courts, including (most relevantly to readers) the Court of Appeal. The same legal test applies.
A further significant change occurred on 1 January 2024, when the Retained EU Law (Revocation and Reform) Act 2023 (REULA) came into force. Aside from nomenclature (renaming “retained EU law” as “assimilated law”, and “retained EU case law” as “assimilated case law”), the REULA made the development of EU law less binding; courts were required to have regard to the fact that EU law is no longer binding and could restrict the proper development of the law. Provision was made for lower courts to be given the ability to make references to the Court of Appeal or UKSC on points of general public importance relating to assimilated case law, although these provisions are not yet in force.
Jurisdiction and enforcement
Perhaps not the most alluring topic, but an important one nonetheless. When the UK was part of the EU, there was a predictable and reciprocal system under which all member state courts recognised each other’s judgments, and a procedure was laid out for which court would take jurisdiction of cross-border cases.
Subject to some transitional provisions that have mostly lost relevance, that system fell away on IP Completion Day. This meant that in order to get relief in relation to the UK or an EU member state, two sets of legal proceedings would normally be required. The UK applied to join the Lugano Convention, which enhances cross-border jurisdiction and enforcement, on 8 April 2020. The EU Commission formally refused to consent to that accession in June 2021, and the UK remains outside that regime.
We will come on to the UPC of course in the section covering patents.