9 August 2017

UK government must provide CJEU clarity post Brexit: Lord Neuberger

The president of the UK Supreme Court has stated that the British government needs to clarify how UK law will be developed post-Brexit.

In an interview with the BBC, Lord Neuberger said the government need to be "very clear" in telling the judges what to do about decisions by the Court of Justice of the European Union (CJEU) after the UK leaves the EU.

The UK government signed the ‘Great Repeal Bill’ last month, which will see all existing EU legislation transferred into UK law.

The government stated that this is to ensure a smooth transitioning period post Brexit. The bill then gives the UK Parliament the ability to "amend, repeal and improve" the laws as necessary.

UK courts will no longer have to refer questions to the CJEU after the UK has officially left the EU, but historic CJEU rulings will be given the same precedent as those from the UK Supreme Court.

Neuberger told the BBC: "If [the government] doesn't express clearly what the judges should do about decisions of the CJEU after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best.”

He added: “All judges would hope and expect Parliament to spell out how the judges would approach that sort of issue after Brexit, and to spell it out in a statute.

“But to blame the judges for making the law when Parliament has failed to do so would be unfair”.

Simon Clark, partner at Bristows, told WIPR that he felt there is an attraction to the UK courts from clients across the continent, so the issue needs addressing quickly.

“There have been some recent contradictory CJEU decisions concerning copyright, for example, where judgments appear to be more and more policy driven,” he explained.

He added: “We can’t have some judges moving away from the EU position whilst others continue to apply CJEU decisions rigidly. A clear policy is therefore needed, which may be an opportunity for the UK to obtain a competitive advantage in Europe if it is no longer obliged to apply a future unsatisfactory CJEU decision.”

In the months following the Brexit vote, the UK announced its plan to ratify the Unified Patent Court (UPC) Agreement.

However, the deal has yet to be ratified.

Gwilym Roberts, partner at Kilburn & Strode, spoke to WIPR and stated that Neuberger is on a “one man mission to tidy up the Brexit mess”.

“For EU IP we risk a potential de-harmonisation for trademarks and designs which would be retrograde. The clarity and uniformity that was developing were great news for business and far from an illegitimate challenge to our sovereignty,” he stated.

“Patents were about to become harmonised through the UPC and the uncertainty around what will happen definitely hampers IP strategy planning,” he concluded.

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