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Euratom, the CJEU, Brexit and the UPC

Keltie LLP

K2 IP Limited

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brexit-1481028_1920IPcopy is finding it difficult to reconcile the UK Government’s various announcements regarding the CJEU with continued participation in the unitary patent scheme.

As discussed in an earlier post we suggested that the Government was going to argue that continued participation in the unitary patent scheme was OK, despite the presence of the CJEU within the unified patent court structure, because domestic patent law would be unaffected by the limited influence the CJEU would have over UPC decisions.

Last week it became clear from the explanatory notes  accompanying the European Union (Notification of Withdrawal) Bill (the “Article 50 bill”) that the Government was intending on pulling out of the European Atomic Energy Community (Euratom) as well as the EU.

For those unaware of the Euratom Treaty, IPcopy notes that it covers all civil nuclear activities that occur within the EU. There are currently 28 member states (the EU member states) plus one associated state (Switzerland). The Euratom organisation is based around the same institutional structure as the European Union including, you’ve guessed it, the CJEU.

The Referendum last year obviously made no mention of the European Atomic Energy Community and, to IPcopy’s mind, trying to argue that leaving the Euratom Treaty is also the “will of the people” is a small step, actually a giant leap, too far. Indeed, the news was greeted with some fairly strong words from people in the science community: Decision to leave Euratom ‘bonkers’, say experts. (See also Brian Cox’s tweet here.)

On The Andrew Marr Show on 29 January, David Gauke MP was asked by Marr about the decision to leave the Euratom Treaty (see iPlayer – available for 28 days from 29 January 2017 – the relevant section is from 41 minutes and 15 seconds). The reply that was given as justification for leaving Euratom was that “It does involve the European Court of Justice”.

IPcopy is therefore at something of a loss. According to Jo Johnson we are aiming to make the UPC and unitary patent scheme part of the Brexit negotiations and yet we are also seemingly going to leave a treaty that is separate from the Treaty on European Union because it has a connection to the CJEU. If the Government has that much of an issue with the CJEU how on earth can they continue in the UPC even if domestic law is unaffected?

Unless of course the Government doesn’t actually have a coherent plan and position….

On the post-Brexit swing-ometer of folly, IPcopy is currently swinging back to the UK position “Will help set up the UPC for negotiation Brownie points and will then exit Stage Left once we leave the EU”

Mark Richardson 31 January 2017


3 Comments

  1. Edoardo Feira says:

    It is indeed swinging. But I really can’t see a UK participation in any a UPC system with even the smallest chance exists for any final decision on any matter to be left to the CJEU.

    Politically mostly, as I am no expert on UK law. The intention to “detach” from the control role of the CJEU has been repeatedly expressed during the campaign and after the decision.

    I can’t see how that can be brought together with a UPC system where, one way or another, the CJEU has the last word on (even if only some) matters to be decided.

    Strategically I was thinking the UK would “trade” an “easy start” for the UPC (ignoring, for a second, the comparatively minor headache that will happen when the UK pulls out afterward) with something else during the negotiations. Which is why I was very surprised when it was announced that the UPC would be ratified anyhow, and, by the look of it, even before Article 50 is triggered.

    I don’t mean to sound cynical but wouldn’t it make more sense to put the ratification on the table after Article 50 has been triggered? An easy a quick UPC start in exchange for something else?

    Time will tell. End of March is just around the corner.

  2. Spider on the wall says:

    Mooney: “If German parliamentary consent to ratification is gained by May 2017 then UPC “Provisional Application” phase will start mid-May.”

    So UK ratification is secured?

    • ipcopy says:

      UK ratification is still proceeding but, from the CIPA meeting on Tuesday this week, it sounds like the UPC team is (unofficially) aiming for the UK to complete its ratification procedure before Theresa May triggers Article 50. In other words the aim is to complete in March. Whether that’s achievable is another matter

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