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23 August 2017Copyright

UK lawyers doubt claims over no CJEU jurisdiction post-Brexit

Several IP lawyers have expressed doubts over the UK government’s claims that the direct jurisdiction of the Court of Justice of the European Union (CJEU) will end post-Brexit.

A government paper published today, August 23, says that because the direct influence will end, the UK and the EU need to agree on "how both the provisions of the withdrawal agreement, and our new deep and special partnership, can be monitored and implemented to the satisfaction of both sides".

However, lawyers were quick to doubt the government's position.

“Given that, following Brexit, UK IP law is likely to track EU IP law for the foreseeable future, it is difficult to see how the government can make this claim,” stated Bill Lister, partner at Fieldfisher.

He added this is “especially given that the alternative would be for UK courts to rule on matters affecting the remaining states, resulting in the probability of conflicting judgments and uncertainty”.

Earlier this morning, Justice Minister Dominic Raab had said the UK will have to keep “half an eye” on the rulings of the court, but said that after Brexit, the government will end the CJEU’s jurisdiction over disputes between the UK and EU.

Sky News reported that several Brexit-voting Conservative Party back-benchers were angered at an apparent climb-down on earlier hard-line stances.

Nick Bolter, partner at Cooley, added: “Despite the popular press portraying the CJEU as deciding disputes ‘between the EU and UK’, the purpose of the CJEU has always been the interpretation of EU law.

“It is no surprise to see the government now state that ‘a close cooperative relationship between the legal systems of the UK and the EU is of mutual importance,” he said.

Gordon Harris, partner at Gowling, said it is interesting that the government is now using the word ‘direct’.

"Previously it simply said that the CJEU would have no influence at all on the UK courts.

“This is, in truth, an acknowledgement of a simple reality. Even if we do a basic trade deal with the EU, there will be aspects which will be governed by the CJEU as a matter of course.”

With regard to the Unified Patent Court (UPC), Harris added that there is “no doubt” that the ultimate court of appeal from the UPC is the CJEU.

However, a UK Intellectual Property Office spokesperson said: “It is worth remembering that the UPC is an international court. It will not be a UK court or an EU institution, but it will have its own court of appeal.

“The role of the CJEU will be contained to issues of interpretation in limited areas where EU law impacts on patent law.

“In referring a question to the CJEU for interpretation, the UPC will not be acting as a UK domestic court, they added.”

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