In Oakley Inc v Animal Ltd and others  EWCA Civ 1191 (20 Oct 2005) the Court of Appeal resolved one of the loose ends dangling from Peter Prescott QC's judgment at first instance earlier in the year (Oakley Inc v Animal Ltd and others  EWHC 210 (Ch) (17 Feb 2005)). The other will have to await the outcome of a preliminary reference to the ECJ under art 234 of the Treaty of Rome.
The issue that was decided today was that s.2 (2) of the European Communities Act 1972 does entitle a minister to exercise an option in a directive to retain existing legislation without primary legislation when implementing such directive. Peter Prescott QC had taken the view that the section gave the minister a very narrow discretion and if he (or in this case she) wanted to do anything more - particularly where a serious matter of policy was involved - he or she would have to get Parliament to pass a statute to grant specifically the necessary powers.
The issue that remains to be decided is whether the option to retain the old law lapsed on the day the directive should have been implemented rather than the day on which it actually was. The language of the directive certainly suggests that that may be so:
That is the issue before the ECJ.
"Any Member State may provide that, by way of derogation from paragraphs 1 to 7, the grounds for refusal of registration or for invalidation in force in that State prior to the date on which the provisions necessary to comply with this Directive enter into force shall apply to design applications which have been made prior to that date and to resulting registrations."
Anyone who lacks the time or patience to read the whole of Peter Prescott QC's erudite judgment can get what I call Animal lite from his summary of his reasoning in paragraph 4 of his judgment of 16 March 2005 (Oakley Inc v Animal Ltd. and others  EWHC 419 (Patents)).
At the start of his judgment, Lord Justice Jacob marvelled "that a pair of fashion sunglasses could lead to a case of such constitutional importance that the Government found it necessary to intervene by its chief law officer, the Attorney General". The case arose like this. If the old law continued to apply the claimant's registration was invalid because the design lacked novelty. It lacked novelty because the design was known shortly before the application. If the old law did not apply, the registration might be valid because things disclosed up to one year before the application are not taken into account.