Brexit - Why do I follow the Art 50 (2) Negotiations when I am an IP Lawyer?

Jane Lambert

The answer is very simple.  The laws upon which my clients will rely to protect their intellectual assets in the future will depend to a large extent on the outcome of those negotiations.  If agreement can be reached on the terms upon which the UK leaves the EU there will be a transition period between 29 March 2019 and 31 Dec 2020 during which long term  arrangements for the future relationship between the UK and EU including the enforcement of intellectual property rights can be negotiated. If agreement cannot be reached there is a danger that important legislation such as  Regulation (EU) No 1215/2012 on jurisdiction and judgments in civil and commercial matters will cease to apply to the UK after 29 March 2019.

At present, negotiations on a withdrawal agreement are finely balanced.  On the one hand, the EU's chief negotiator,Michel Barnier, said we were 80% of the way there in a press statement following the July 2018 General Affairs Council on 20 July 2018.  However, the future of the border between the United Kingdom and Republic of Ireland remains a stumbling block.  As in most negotiations, nothing is agreed until everything is agreed. If no agreement can be reached on Ireland there can be no agreement on anything else.

As this is a legal blog and not a political one I am not going to argue whether the UK's withdrawal without an agreement would be a good thing or a bad thing.  There are plenty of others who are happy to discuss that.  My job is to advise intellectual property owners of the state and direction of the negotiations so that they can take sensible precautions to protect their intellectual assets whatever the outcome.

The publication in which I discuss these topics is NIPC Brexit.   Quite apart from my articles I hope this blog will be bookmarked for its links.  The key legal text is art 50 (2) of the Treaty of European Union which requires a state that wishes to leave the EU to give 2 years notice of its intention. During that time the rest of the EU is required to negotiate an agreement with that state setting out the arrangements for its withdrawal and taking account of the framework for its future relationship with the EU.  If no agreement can be reached, art 50 (3) provides that the EU Treaties cease to apply to the departing state at the end of those 2 years.  A link to that article appears at the top of the left hand side column.

The EU negotiators are required to follow guidelines agreed by the governments of the remaining member states assembled in the European Council.  The initial guidelines were agreed on 29 April 2017 and they were supplemented by further guidelines on 15 Dec 2017 and 23 March 2018. Links to those guidelines appear immediately below the link to art 50.

News on the negotiations and links to important documents are published from time to time on the web page of the Commission's task force in charge of preparing and conducting the art 50 negotiations with the UK.  A link to that web page appears immediately below the link to the Council guidelines.

News of the negotiations from the British side appears on the web page of the Department for Exiting the EU ("DExEU").  The British government's negotiating objectives are set out in a number of white papers and other policy documents appear further down the left hand column.  Below the policy documents I have listed links to some of the key statutes to which reference is made from time to time.  At the very bottom of the column I have inserted links to sundry resources that I have found interesting and useful.

The British and European negotiators have produced a draft withdrawal agreement in accordance with art 50 (2) the link to which appears in the left hand column between the links to the task force and DExEU.  The text highlighted in green has been agreed by both sides.

Every month I publish an article on the progress on the negotiations in the previous month which I call the "Brexit Briefing".  The last of those Brexit Briefings  was June's which I published on 3 July 2018. Readers will find links to the other Brexit Briefings at the top of the right hand column. Immediately below the links to the Brexit Briefings are sundry articles on Brexit and IP which I have written or found on the internet.  At the very bottom of the column there are links to my previous posts to this blog.  At the very top is a link to Helen Tse's Doing Business After Brexit to which I contributed the chapter on IP and GDPR.

The last few weeks have been momentous with the publication of the Chequers statement that led to the resignation of the Foreign Secretary and the Secretary of the State for DExEU and the final stages of the passage of the European Union (Withdrawal) Bill.  One of the reasons for the resignations and the difficult passage of the Bill is that there is a body of opinion within government and the Conservative and Labour Parties in favour of leaving the EU without a withdrawal agreement in order to pursue new trading relations with the USA as soon as possible. Research has recently been carried out by scholars of the Kennedy School of Government and King's College London on the likelihood of a trade deal with the USA and whether it would be advantageous for the UK which I discussed in What Sort of Trade Deal (if any) could the UK negotiate with the USA? 8 June 2018.

On 19 June 2018 negotiators for the UK and EU published a progress report on their negotiations on the withdrawal agreement which I discussed in Hope for the best but prepare for the worst 22 June 2018,  A picture of an aeroplane appeared because Airbus SE had published a risk assessment concluding that any type of Brexit was likely to be disruptive and a Brexit without a withdrawal agreement would be disastrous.  Airbus's worries were echoed in warnings by other business leaders prompting the former Foreign Secretary to express contempt for the concerns of business in less than diplomatic language.

In The Best that can be achieved from the Withdrawal Agreement Negotiations and the Likelihood of achieving it 30 June 2018 I sketched out the deal to which the rest of the EU was likely to agree and drew attention to the very short time available for achieving it.  I developed that point in The Chequers Statement Explained 8 July 2018 and my commentaries on The White Paper on the Future Relationship between the UK and the EU 21 July 2018 and the white paper Legislating for the Withdrawal Agreement between the United Kingdom and the European Union in Today's White Paper on the Withdrawal Agreement - What's happened to Ireland? 24 July 2018.

Anyone wishing to discuss this article or Brexit generally should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.