Can the UK become and stay a member of the UPC?

The European Parliament Think Tank has issued a paper on the question of whether the UK can remain a member of the Unitary Patent Court (UPC) in a post-Brexit world. The cautious conclusion of the paper is that “it seems not per se legally impossible that the UK can stay within the UPCA [UPC agreement], even when not an EU Member State”. The problem of the UK’s continued membership of the UPCA arises from the fact that, when the UPC was conceived, nobody envisaged the UK unilaterally deciding to leave the EU.

The EU paper outlines the issues contributing to the uncertain future of the UPC and the potential involvement (or not) of the UK in the UPC project going forward. These include the reluctance of Germany to ratify the agreement before Brexit and the unclear position of the UK Government on whether the UK still wishes to be a member of the UPC (and thereby subject to the jurisdiction of the CJEU).

Germany is dragging its feet

The UPC agreement (UPCA) will come into force as soon as 13 EU member states have ratified the agreement. Germany, France and the UK must be among the 13. Theresa May’s UK government ratified the UPCA back in April 2018 (IPKat post here) ["Remember, Boris?"questions Merpel]. France has also ratified the agreement, but Germany has not. German ratification has been held up by an esoteric legal challenge to the UPCA in the German constitutional court (Bundesverfassungsgericht) (IPKat post here). The outcome of the constitutional court decision is expected by the end of 2019 or early 2020. However, the German parliament has indicated that, even once they have the go-ahead for ratification from the Constitutional Court, they will not ratify the agreement until the outcome of Brexit is clarified. With Brexit now scheduled for January 2020, it therefore seems unlikely that the UPC will be in force as and when Brexit occurs.

The Brexit/UPC paradox

The UK Government’s position is that the UK wants to “take back control” of its laws by leaving the jurisdiction of the CJEU. However, the UK Government has also ratified the UPC agreement (UPCA). According to the UPCA, the UPC will apply EU law and decisions of the CJEU will be binding on the UPC. Therefore, as things stand, if the UK continues to be a member of the UPC post-Brexit the UK will continue to be under the jurisdiction of the CJEU.

In the opinion of the EU paper it is “highly questionable that the UK itself would accept the arrangements of Article 20 and Article 21 for the UPCA which foresee the primacy of EU law and its application…as the end of the jurisdiction of the CJEU in the UK was one of the main intentions of the whole Brexit process” [Merpel: According to who? Merpel does not remember “the end of the jurisdiction of the CJEU” being on her Brexit referendum ballot paper].

The current position of the UK Government is also that they wish to leave the EU Single Market and Customs union. This appears to be legally incompatible with the UPCA, given that UPCA makes it clear that the UPCA is an instrument for the benefit of the single market. However, the report does not consider the possibility that the present Governing party in the UK, the Conservatives, may not achieve a majority in the upcoming general election. The “Brexit plan” of the main opposition party, Labour, is to retain a “close single market relationship”.

The issue of the London section

At the moment, the UPCA states that one of the unitary patent courts (the life sciences and pharmaceutical section) will be located in London (Article 7(2) and Annex II). The EU paper finds notable the unanimous decision of the EU Council to move the headquarters of the European Medicines Agency (EMA) from London to Amsterdam in the context of an imminent Brexit. However, relocation of the London section of the UPC would not be easy. As an international agreement, the UPCA could only be amended by unanimous decision of all the contracting states, including the UK (so long as the UK had not withdrawn from the agreement).

The position of the UK Government – as clear as mud

The Government’s “IP and Brexit Guidance” is uninformative on the issue of the UPC. The UK Governments guidance “Patents if there’s no Brexit deal” does mention the UPC. However, the Government hedges its bets and indicates that, in the event of no-deal: “The UK will explore whether it would be possible to remain within the Unified Patent Court and unitary patent systems”. In any case, this guidance has now been withdrawn after Prime Minister Johnson failed to meet his “die in a ditch” Brexit deadline of 31 October 2019. 

Brexit metaphor

The 2018 draft withdrawal agreement with the EU (i.e. Theresa May’s “deal”) did not mention patents. Boris Johnson subsequently renegotiated 2019 withdrawal agreement also does not mention patents. The non-binding political declaration accompanying the 2019 withdrawal agreement merely mentions that “[t]he Parties should establish a mechanism for cooperation and exchange of information on intellectual property issues of mutual interest, such as respective approaches and processes regarding trademarks, designs and patents”. Regardless, the Government’s withdrawal agreement bill was not approved by parliament before the general election was called. Also, as noted above, the Labour party has promised to renegotiate the withdrawal agreement should they win the general election.

The opinion of the CJEU

The EU paper summarises the (similarly unclear) position of the CJEU on the UPC/Brexit conundrum. CJEU Opinion 1/09, on the question of whether a 2009 draft version of the UPCA was compatible with the provision of the EU Treaty, has been read as indicating that membership of the UPC is only open to EU member states. The CJEU was of the opinion that Article 14a of the draft UPCA allowed non-EU member states to be a party to the Agreement. The relevant provision was removed from the final UPCA agreement. However, the recent EU report obliquely notes that “there is an increase in the number of votes that want to show a right-dogmatic way of facilitating the participation of the United Kingdom (and possibly other non-EU countries in the future as well)".

The paper concludes...

According to the EU paper, it may be possible for the UK to remain a member of the UPC post-Brexit. However, UK UPC membership would need “innovative legal solutions, as the UPC is an international court applying EU law – and the reason for Brexit was all about not applying EU law any more” [Merpel is again not sure why the author of the report is so sure about this]. 

Another option, of course, would be for a majority of the UK electorate in enough constituencies to vote Liberal Democrat, who have promised to revoke Article 50, and then the whole mess will go away...[Another famous cat, the Number 10  cat, may be wishful for that prospect if only to eject the recent dog from his territory].