Earlier today the UK Government released a Future partnership paper on Security, law enforcement and criminal justice. This paper is closely related to the Foreign Policy, Defence and Security and Development paper released by the UK Government on 12 September. The UK Government’s paper notes the importance for UK and EU citizens of a continued cooperation on matters such as security, law enforcement and criminal justice and proposes a future partnership that goes much further than the existing, often ad hoc arrangements the EU currently operates with third countries. The UK Government suggests that this future partnership agreement could draw on legal models currently used by the EU to structure cooperation with non-EU countries in other fields, such as trade.
The UK Government has released a paper outlining the UK’s proposals for a future partnership with the EU regarding foreign policy, defence and development. The paper highlights the UK’s shared interests and values with Europe regarding foreign policy and defence, and the UK Government’s ongoing intention to working closely with the EU in the future, going beyond the types of agreements that exist between the EU and non-EU countries. The Government is offering to contribute military assets to EU operations, cooperate on sanctions and agree joint positions on foreign policy as part of its partnership with the EU after Brexit.
Commission paper on IPR post-Brexit highlights the importance of resolving key issues prior to withdrawal
The European Commission has published “Position paper transmitted to EU27 on Intellectual property rights (including geographical indications)” (7 September 2017) which proposes that the (Brexit) Withdrawal Agreement should ensure that:
- The protection enjoyed in the United Kingdom on the basis of Union law by both UK and EU 27 (the remaining EU states) holders of intellectual property rights having unitary character within the Union before the withdrawal date is not undermined by the withdrawal of the United Kingdom from the European Union. The paper suggests there should be automatic recognition of an IP right in the UK on the basis of the existing, unitary character IP right i.e. that, for example, any EU trade mark rights applying in the UK prior to Brexit should be automatically replaced by UK rights post-Brexit. Further, the fact that use may not be in the UK should not be able to form a basis for revocation of the rights. The implementation should be not result in any financial cost for the IPR holders and any administrative burden should be kept to a minimum. The paper also requires that the UK Government put in place a system to continue the protection of Geographical Indications (GIs) and protected designations of origin (PDOs) which are currently legislated for under EU law and for which there is no current domestic legislation in the UK. However there is no suggestion of a reciprocal recognition of UK-based PDOs or GIs post-Brexit.
- Procedure-related rights (e.g. right of priority) in relation to an application for an intellectual property right having unitary character within the Union still pending on the withdrawal date are not lost when applying for an equivalent intellectual property right in the United Kingdom ie. that where an application is in progress at the point of the UK’s withdrawal from the EU, the applicant should be entitled to keep the benefit of any priority date when applying after the withdrawal date for an equivalent IPR in the UK.
- Applications for supplementary protection certificates or for the extension of their duration in the United Kingdom on-going before the withdrawal date are completed in accordance with the conditions set out in Union law (and any certificate so granted or extended should provide for protection equivalent to that provided for by Union law.
- Databases protected in the EU27 and the UK before the withdrawal date continue to enjoy protection after that date. This involves waiving the requirements of Article 11(1) and (2) in the EU27 Member States in respect of UK nationals and UK companies and firms; and the UK should not exclude EU27 nationals and EU27 companies and firms from legal protection of databases in the UK on nationality or establishment grounds. No provision for any continuing mutual recognition of database rights is referred to however.
- Exhaustion before the withdrawal date within the Union of the rights conferred by intellectual property rights is not affected by the withdrawal of the United Kingdom from the European Union. The conditions for exhaustion of each IPR should be those defined by Union law.
These points highlight the key areas that have concerned IP stakeholders since the Brexit referendum and serve as a timely reminder to the UK Government that these issues need to be dealt with prior to Brexit, in one way or another.
Joel Smith, Head of IP at Herbert Smith Freehills, commented, “Whilst it is reassuring that the Commission recognises that there are important issues for continuity of IP protection to be addressed upon Brexit, this paper only begins to scratch the surface for the number of issues that need examining by UK Government”.
New Brexit Papers – Government Position Paper on Collaboration on Science and Innovation and House of Commons Library Briefing Paper on the Withdrawal Bill
The Government has published a position paper on Collaboration on science and innovation. Having previously stated its intent to continue to collaborate with its European partners on major science, research and technology initiatives, this paper sets out the UK’s objectives for a science and innovation partnership agreement with the EU.
On 1 September 2017 the House of Commons Library published a briefing paper on the European Union (Withdrawal) Bill, which provides a useful analysis of the key features of the Bill. The paper also highlights areas of uncertainty and complexity in the Bill and is critical of the way some of the delegated powers are drafted, which will enable Government to make substantive policy changes (as opposed to necessary technical changes to resolve deficiencies) to retained EU law.
A joint EU/UK technical note on the comparison of the EU and UK positions on citizens’ rights was published on 31 August 2017. Citizens’ rights was one of the main topics covered in the latest round of negotiations (alongside financial settlement and other separation issues).
The joint technical note summarises and compares the EU and UK positions in respect of citizens’ rights. The note sets out, in table format, areas on which the UK and the EU are in agreement (highlighted in green), areas on which there remains disagreement (highlighted in red) and issues where further discussion is necessary to clarify the position (highlighted in yellow).
Last week the UK Government released its negotiating position paper on international transfers of personal data within the EEA (The Exchange and Protection of Personal Data). Once the UK leaves the EEA it will no longer be subject to the General Data Protection Regulation (the “GDPR”) and would no longer form part of the EU “safe data” zone throughout which personal data may be freely transferred. The GDPR will however continue to apply to UK businesses who provide goods or services to individuals in the EEA.
In line with previous declarations, the position paper outlines the Government’s desire to maintain the “frictionless” movement of data to and from other countries within the EEA. It cites the economic benefits for the UK and EU as well as cooperation in respect of law enforcement matters (such as serious crime and terrorism).
The position paper sets out the Government’s preferred outcome in three key areas:
- An EU adequacy decision in relation to the UK’s post-Brexit data protection legislation;
- The continued input of the UK data regulator (the Information Commissioner’s Office (the “ICO”)) in the EU’s regulatory dialogue; and
- Interim arrangements, from the point of Brexit to the time when more permanent measures have been put in place, to maintain stability and consistency.
An adequacy decision would be made by the European Commission. It would effectively state that the UK’s data protection regime offered a standard of protection equivalent to that in other EU member states. This would be the most efficient method of ensuring that personal data can continue to flow between the UK and the rest of the EU. The position paper highlights the fact that the UK will have in place, at the point of departure from the EU, a data protection regime which is at an “unprecedented point of alignment with the EU” (by virtue of the GDPR, which will have applied up to that point).
If an adequacy decision, or something similar, is not forthcoming, then data controllers within the EEA would only be able to export personal data to the UK under the terms of the Standard Contractual Clauses, or by following approved Codes of Conduct, or, in intra-group situations, after they have implemented Binding Corporate Rules. These are the alternative legal bases for transfers of personal data outside the EEA as set out in the GDPR. As we have seen (in the context of data transfers with other non-EEA countries), these inevitably lead to additional cost and administrative hassle for organisations, especially for small to medium sized companies.
There are nonetheless some obstacles to the adequacy model, not all of which are mentioned in the Government’s position paper. One (somewhat glaring) omission is the fact that the UK’s controversial surveillance regime may affect its ability to meet the standards. In particular, there are ongoing concerns about the extent of the surveillance, interception and retention powers in the Investigatory Powers Act 2016, which run counter to the EU’s approach to data protection. Surveillance legislation in the US has to date precluded an adequacy decision, forcing it to rely instead on measures such as the US Privacy Shield, Standard Contractual Clauses and Binding Corporate Rules.
ICO input into European Data Protection
The paper outlines the UK’s intention to remain “fully involved in future EU regulatory dialogue” around data protection in a post-Brexit world. It states that the ICO would want to continue working closely with other authorities and proposes that the UK explores mechanisms to this effect.
This position is not surprising. If the UK were to lose influence at the European table, this could lead to divergence in the interpretation of relevant legislation between the UK and the rest of the EU. This could, in turn, impact any adequacy decision applying to the UK.
Throughout, the paper advocates the need for stability and certainty in respect of the many existing data transfer arrangements between the UK and other EU member states. In order to tackle this issue, it proposes that the EU at least find in favour of an interim adequacy decision for the mutual benefit of all parties. It argues that this is acceptable on two grounds, namely:
- The UK’s data protection regime will necessarily be fully compliant with the GDPR at the point of its departure from the EU (as it will be subject to the GDPR immediately beforehand); and
- At least in the short term, the GDPR will continue to apply under UK domestic law through the EU Withdrawal Bill.
The paper suggests that this interim arrangement should hold until a more permanent agreement is put in place (which, in an ideal scenario, would simply be a more long term version of the same thing).
For more information, please contact Marcus Turle, Consultant, Duc Tran, Senior Associate or your usual Herbert Smith Freehills contact.
The post below was first published on our Public International Law blog
On 28 August, in advance of the next round of EU-UK talks, the UK Government published three Technical Notes, one of which “provides further information to support the UK’s position published on 13 July in the UK’s position paper on Privileges and Immunities” (the Technical Note). The 13 July Position Paper is discussed in our blog post here. The Technical Note requests clarification from the EU on a number of issues, in particular as regards the EU’s position on the implications of the UK’s withdrawal from Protocol (No 7) on the privileges and immunities of the European Union of the Treaty on the Functioning of the EU (Protocol 7).
As a general premise, the Government asks whether the EU’s position on the extent of the privileges and immunities to be granted under the Withdrawal Agreement (the Agreement) should differ depending upon whether or not the Agreement confers, or continues to confer, upon the EU functions in, or in respect of, the UK.
In particular, the Technical Note seeks confirmation from the EU that it agrees that the privileges and immunities granted to EU institutions, agencies and officials in the UK should reduce after exit so as to be linked solely to any function that may be conferred, or continue to be conferred, by the Withdrawal Agreement. To the extent that any wider application of privileges and immunities of the EU in the UK is envisaged, the EU is asked to clarify why this is necessary. Specifically, the Government requests an indication from the EU as to the rationale for any continued protections in the UK for MEPs, and how such protections would operate.
The Technical Note foresees the continued presence of an EU delegation to the UK after the UK’s exit, and asks for clarification regarding how provision could be made to allow for this. It also asks for confirmation and assurances that the UK’s representation to the EU should continue to enjoy the same diplomatic privileges and immunities as a permanent mission of a Member State after Brexit. A reciprocal recognition is also acknowledged of ongoing privileges and immunities for representatives of Member States taking part in the work of institutions, agencies or bodies based in the UK, and of the UK taking part in the work of the EU within Member States’ territory, where such continued work is envisaged in the Agreement.
The questions posed in the Technical Note provide an interesting indication of the nature of the discussions taking place between the EU and the UK on the issue of ongoing privileges and immunities. This issue is fundamentally bound into the nature of the future relationship between the UK and the EU under the Agreement (and any further relationship agreements). As such, the Technical Note centres its requests on the continuing functions to be carried out by each side, and seeks clarification in respect of privileges and immunities that may be sought outside such functions. Central to these questions, therefore, will be the continuing role of the EU in the UK, and vice versa, under the Agreement.
For more information, please contact Andrew Cannon, Partner, Hannah Ambrose, Professional Support Consultant, Vanessa Naish, Professional Support Consultant or your usual Herbert Smith Freehills contact.
On Monday 28 August 2017 the UK Government published three technical notes which expand on some of its Brexit position papers. The first two notes relate to the Government’s position paper on Nuclear materials and safeguards issues, which was published on 13 July 2017. A technical note on existing contracts for the supply of nuclear material highlights the need for clarity in respect of nuclear supply contracts entered into prior to the UK’s withdrawal (and as required under the Euratom Treaty approved by the Euratom Supply Agency) but where the supply period extends beyond the withdrawal date. A technical note on spent fuel and radioactive waste highlights the need for reciprocal assurances from the UK and the EU27 in relation to continued legal responsibilities for spent fuel and radioactive waste and the importance of a dispute resolution mechanism.
A third technical note relates to the ‘Privileges and Immunities’ position paper released on 13 July 2017 (see our blog post here). This technical note asks the EU to clarify its position in respect of a range of issues such as the scope of certain continued protections, how and why continued protection for MEPs after Brexit is justified, or what assurances it can offer the UK that the UK’s representation to the EU will continue to enjoy these privileges and immunities as long as the Withdrawal Agreement confers on the EU any functions in or in respect of the UK.
A paper outlining the UK Government’s position on data protection post-Brexit has been released. A new Data Protection Bill was announced in the Queen’s Speech in June which will implement the EU’s new data protection framework into UK law. The UK Government is planning to use this alignment with EU law to explore a UK-EU model for exchanging and protecting personal data, building upon the existing adequacy model. This will provide the necessary stability for businesses, public authorities and individuals and should ensure that the UK’s Information Commissioner’s Office and the equivalent EU regulators are able to maintain effective regulatory cooperation and dialogue post Brexit.
We will publish a more detailed analysis of the paper here shortly.
Enforcement and dispute resolution under the Withdrawal Agreement and any future relationship agreement: no role for the CJEU….or is there?
The post below was first published on our Arbitration blog.
On its face, the thrust of the UK Government’s Future Partnership Paper on Enforcement and Dispute Resolution (the Paper), published on 23 August, is to rule out the jurisdiction of the Court of Justice of the European Union (CJEU) to determine the enforcement of rights and obligations by individuals and businesses derived under the Withdrawal Agreement (and any future relationship agreement) and disputes between the EU and the UK. Since the Paper was published, the Prime Minister has again reiterated the Government’s position that “the UK will be able to make its own laws – Parliament will make our laws – it is British judges that will interpret those laws, and it will be the British Supreme Court that will be the ultimate arbiter of those laws.”
However, as discussed below, whilst perhaps consistent with the stage of negotiations, the Paper is drafted to leave considerable room for manoeuvre, and it leaves many questions unanswered regarding enforcement of rights and obligations under the Withdrawal Agreement and any future relationship agreements and dispute resolution between the UK and the EU after Brexit.
The Paper follows the publication on 22 August of the UK Government’s Future Partnership Paper on Providing a Cross-border Civil Judicial Cooperation Framework, considered in our blog post here, which presented the UK’s position on the extent to which current EU rules on choice of law, jurisdiction and enforcement of judgments should continue to apply as between the UK and the EU Member States post-Brexit. Continue reading