Britannia – Quo vadis?

There is a domestic debate in the United Kingdom which currently is getting increasingly more and more fierce: Could this country, after a bitter row between supporters of the EU membership, on the one hand, and their adversaries, furious eurosceptics, on the other hand, eventually push the panic switch to trigger the ejector seat, thereby cancelling all the treaties governing their membership in this club? The recent issue of The Economist even brings this matter even on the front page. I myself, being a German citizen, tend to consider any exit of the United Kingdom from the EU as a regrettable and detrimental step harmful both for the prospects of the Kingdom as well as for the remaining EU Member States. It reduces the weight of both parties, in terms of political influence as well as concerning prospects of economic well-being. And, on the long term, European integration was and still is the central political tool for keeping peace in Europe despite a violent past.

In his time, facing a deadly threat by Nazi Germany, Churchill was right when uttering

“For 400 years the British policy has been to oppose the strongest power in Europe by uniting all the lesser powers against it. Sometimes it’s Spain, sometimes it’s Germany, sometimes France.” (Churchill: The Wilderness Years)

Those amongst the readers of this blog who have consumed episodes of the Yes Minister sitcom in the 1980s might have laughed at Bernhard Wooley’s joke stretching the scope of this piece of Churchill’s wisdom to be sort of a first principle of the UK membership in the EU. But can this really still be a valid device for today’s politics? I’m in doubt about such assumption.

Some eurosceptics might perhaps prefer to dream of a revival of that sort of special relationship between the United States and the United Kingdom which had been forged, again under the horizon of the agression emerging from Nazi Germany, between key allies in the World War II. However, as early as in 1952 Harold Macmillan (at that time Housing Minister) noted down in his political diary:

17. January

… The Cabinet today was interesting. Eden gave us his general impressions of the American visit. He had been forcibly struck – indeed horrified – at the way we are treated by the Americans today. They are polite, listen to what we have to say; but make (on most issues) their own decisions. Till we can recover our financial and economic independence, this is bound to continue … (Catterall, Peter [Ed.]: The Macmillan Diaries – The Cabinet Years, 1950-1957, p. 133. London: Macmillan, 2003).

Would anyone dare to seriously argue that this substantially has changed meanwhile? That sort of financial and economic independence Eden and Macmillan have talked about hardly will emerge from any EU exit of the United Kingdom. The Economist summarises the prospects of Britain walking away entirely as follows:

The most likely outcome would be that Britain would find itself as a scratchy outsider with somewhat limited access to the single market, almost no influence and few friends. And one certainty: that having once departed, it would be all but impossible to get back in again.

And, there is another big issue looming in UK domestic politics: A referendum on independence of Scotland might split the Kingdom into two states, Scotland most likely staying within the EU.

Well, it all will depend on the British people who need to make up their minds.

If, in the most extreme case, England, Wales, and Northern Ireland were bound to exit the EU completely – what would be (most likely) the consequences for the field of IP law?

  • The European Patent Convention (EPC) is set up as an international treaty completely independent from the European Union. Hence, as far as EPC basic membership rights are concerned there should be no serious change of the present legal situation.
  • Unitary Patent / Unified Patent Court: This new system, not even finalised yet, is open for EU Member States only. If any UK exit referendum results in a pro-exit vote before the UK have ratified the Unified Patent Court Agreement, the latter appears to be doomed because of it can enter into force only after ratification by the three largest patent filing nations. The United Kingdom is one of them. [Update: After exit of UK is complete and effective, UK does no longer count as Member State in Article 59 of the Agreement, and entry into force thereof depends on the three biggest filers of the remaining EU Member States.] The other way round, if the UK exit happens after the Agreement has entered into force, then there seem to exist insurmountable legal hurdles for the UK to remain party to the Agreement because of the Court of Justice of the EU explicitly has ruled that this new Court must be open only for EU Member States. Moreover, under political considerations it appears to be hardly possible that one of the divisions of the central chamber still remains located in London. UK attorneys will not / no longer be allowed to represent their clients before the Unified Patent Court. If Scotland manages to gain independence while maintaining EU membership status, the effects of the exit will only affect England, Wales, and Northern Ireland.
  • Directive 2008/95/EC of 22 October 2008 to approximate the laws of the Member States relating to trade marks would no longer be binding for the UK. If Scotland manages to gain independence while maintaining EU membership status, the effects of the exit will only affect England, Wales, and Northern Ireland.
  • EU Community Trade Marks / EU Community Registered Designs: As both Regulations are secondary EU Law, any withdrawal of the United Kingdom will cause that protection is no longer extended to the territory thereof. There will be a sensible debate as to whether or not protection for existing EU Community Trade Marks / existing EU Community Registered Designs registered prior to the exit on the territory of the UK can be maintained further. Probably UK attorneys might be stripped of their right to represent their clients before OHIM. If Scotland manages to gain independence while maintaining EU membership status, the effects of the exit will only affect England, Wales, and Northern Ireland.
  • As soon as UK is no longer part of the EU internal market, several rules governing the exhaustion of IP rights will probably change as far as UK territory is affected. Again, if Scotland manages to gain independence while maintaining EU membership status, the effects of the exit will only affect England, Wales, and Northern Ireland.

A precise walk through the acquis communautaire surely will uncover other but minor legal changes, e.g. concerning  Directive 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions, or concerning Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I).

Time will tell.

(Photo released to the public domain by Man vyi on Wikimedia)

About The Author

Axel H. Horns

German & European Patent, Trade Mark & Design Attorney

2 Responses to What If The United Kingdom Were Set To Leave The European Union?

  1. Gibus says:

    Dear Axel,

    Thanks for this post! Indeed what has been witnessed in the process concerning a unitary patent and a unified patent court, is quite telling about the more global issue of the EU.

    One remark though. It is important to not confuse euroscepticism with critics on EU. I’m a French citizen and actually feel more europhile than ever. I work and have friends throughout the whole Europe, from Poland to United-Kingdom, including from Turkey. Nevertheless, having been closely involved in some EU legislative process, I cannot tell anything but that EU does not work in the benefit of Europe.

    Just look at the unitary patent regulation and the unified patent court agreement that have been extensively covered on KSNH blog. I’ve tried to show may times that this project was actually going *against* the EU (for eg. here, or on my last post: The Lord of the Unitary Patents: a preview on European Parliament plenary vote).

    I have also many German friends who I’m discussing with, and they all agree that the current EU has actually been taken over by Germany from decades. This can be seen in economic EU policy, as well as on the unitary patent package.

    So eventually triggering the ejector seat, can also be seen as a way to build a peaceful, fair, balanced and effective Europe, without having to suffer from the current EU severe drawbacks.

  2. Gibus says:

    Another interesting point in the unitary patent EU saga about its implications for wider EU policy lies in the IT and ES recourse against the enhanced cooperation procedure. This is all but a detail for EU.

    I really don’t know what will come out of ES & IT actions to nullify the enhanced cooperation. While I have no doubt anymore that the implementing regulation and the UPC agreement are not compliant with EU Law and Opinion 1/09 CJEU, it can be argued that the authorisation for the enhanced cooperation is on the tracks of EU Treaties. After all, if it was written down in Treaties and refined until Lisbon Treaty, it is to use it to overcome unanimity deadlock. On the other hand, there are serious legal reasons to reject this procedure. The best analysis is:

    Lamping, Matthias, Enhanced Cooperation – A Proper Approach to Market Integration in the Field of Unitary Patent Protection? (October 20, 2011). International Review of Intellectual Property and Competition Law, No. 8, 2011. Available at SSRN: (apparently the paper cannot be downloaded anymore, I can give a copy if needed).

    So the CJEU will have to eventually decide whether to open up the gates for the enhanced cooperation procedure or to define it in a narrow way in order that this procedure cannot be used for political convenience.

    The enhanced cooperation has never been really tested. The Divorce directive was not a real issue, everybody agreeing to disagree (participating and non-participating Member States). So the unitary patent is a first test.

    Authorising enhanced cooperation for the unitary patent would give confidence to Member States to use it more often to overcome their disunity. Financial regulations are candidates ready to jump in if the door is opened. But is this really what the Union should be about? I don’t have the answer. What do you think?

    Also, this case is special in that the implementations of the enhanced cooperation, i.e. the unitary patent regulations and the UPC, have been set up rather quickly (despite all sudden developments) in a way that can hardly pleased to the CJEU. Specially after its strong opinion on the former EEUPC project. Since there are some arguable legal grounds to reject the authorisation for the enhanced cooperation procedure, it might well be that CJEU decides to put an end to this mess, without waiting to review the regulation.

    We will know better in a few hours (9:30) when conclusions of Advocate General are published.