Intellectual property
Articles 50-57 of the draft WA set out the Commission’s proposed provisions covering intellectual property right arrangements. The provisions, in summary, aim to ensure that the UK’s withdrawal from the EU does not result in intellectual property right holders losing those rights in either the UK or the EU following Brexit.
Article 50(1) proposes that any holder of an EU-originating intellectual property right in the UK will be “without any re-examination” granted a “comparable and enforceable” UK intellectual property right. Article 50(2) would similarly require that all holders of so-called ‘geographical indication’ guarantees that are protected on the last day of transition should be entitled to use, from the last day of transition and without any re-examination, a UK law-based right that provides the “same level of protection”.
The remaining provisions in Article 50 propose that these UK-based property and geographical indication rights operate under identical terms to their EU equivalents, including on issues such as duration of registration and commencement of trade mark status.
The 15 March draft amended Article 50(3) to provide for a derogation from the requirement that the UK declare intellectual property rights invalid in the UK, where the grounds for doing so are only applicable in the EU.
Article 51 sets out the registration requirement for the new UK-based property rights; the Commission proposal here is to make UK-based registration in the first instance, post-transition, free of charge and not contingent on residence or proof of address in the UK. Further renewal charges and requirements will be within the purview of UK law, however.
Article 52 sets out an EU promise to continue to honour those in the UK who indicated the EU as relevant jurisdiction in registering a trademark or a design in international law.
Article 53 extends this commitment to unregistered Community designs, which are to be protected by an equivalent status in UK law for an equivalent duration.
Likewise, Article 54 requires a UK equivalent status to be granted to EU right-holding databases (as a form of intellectual property).
Article 55 proposes a mechanism for dealing with pending applications for first-time EU trademarks and Community plant variety rights. The provisions in Article 55 set out that anyone who filed such an application in the EU before the end of the transition period will have, within UK law, a ‘right to priority’ on identical goods or services for a period of 6 months in transition – precluding any other legal persons from registering a trademark or plant variety right in the UK within that six-month period. This is a reflection of obligations the UK and the EU will both hold under international and regional intellectual property law, including the Paris Convention for the Protection of Industrial Property, and the WTO’s TRIPs.
Article 56, ensures that applications for supplementary protection certificates for plant protection products and for medicinal products filed in the UK before the end of the transition period will be handled in line with currently existing EU law obligations.
Article 57 concludes by noting that rights exhausted in both the EU and the UK before the end of the transition period shall remain exhausted, as determined by EU intellectual property law in both the EU and the UK.
In September 2017 the UK Government paper on intellectual property rights, and that the UK’s own ambition is to have a “substantial future relationship on intellectual property”. The UK Government consequently feels that the ‘separation’ provisions are unlikely to be used, as new intellectual property rights arrangements, set out in the ‘future relationship’ agreement, will take their place.
The Technical Note concludes that “where the UK does not have existing domestic legislation to protect certain types of rights, it will establish new schemes”, which will aid this ‘future relationship’ goal. A commitment to establish domestic legislation on relevant rights currently not covered in the UK will also satisfy many of the provisions set out in the draft WA on intellectual property rights.
Data and information
The General Data Protection Regulation (‘GDPR’) applies from 25 May 2018. The GDPR is the main piece of EU data protection law and applies to the general processing of citizens’ personal data. The Law Enforcement Directive applies to the processing of personal data for law enforcement purposes.
Under the EU’s data protection framework, any country other than the EU and the EFTA-EEA Member States is classed as a ‘third country’. Personal data can only be transferred to a third country when an adequate level of protection is guaranteed. One option is for the European Commission to make an “adequacy decision” so that data can flow from EU/EEA Member States to third countries (or one or more specific sectors in those countries).
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The EU proposal
Articles 66-69 of the amended draft Withdrawal Agreement cover data processed or obtained before the end of the transition period or on the basis of the Agreement.
Article 67 states that Union law shall apply in the UK in respect of the processing of the personal data of people outside the UK, provided that the personal data:
- were processed in accordance with Union law in the UK before the end of the transition period; or
- are processed in the UK after the end of the transition period on the basis of the Agreement.
Under Article 68 the mutual assistance provisions of the GDPR37 and the LED 38 will apply to data obtained by the UK before the end of the transition period. The text on Article 68 is agreed on the policy objective but drafting changes or clarifications are still required. Discussions on
the other Articles are ongoing.
Under Article 69 the provisions of EU law on confidential treatment, restriction of use, storage limitation and requirement to erase data will apply to data obtained by the UK either before the end of the transition period or on the basis of the WA.
The UK approach
The Government has stressed that it wants to maintain the unhindered flow of data between the UK and the EU after Brexit. In an August 2017 position paper, the Government said that it “wanted to explore a UK-EU model for exchanging and protecting personal data that could build on the existing adequacy model”:
The Data Protection Act 2018 brought the GDPR and the LED into UK law and, according to the Government, “ensure that the UK is prepared for the future after we have left the EU”.
UK data protection law will be aligned with EU law at the point of exit. On this basis, the UK will seek a basis for the continued free flow of data between the EU and UK until more permanent arrangements can be put in place:
Ongoing public procurement
Articles 71 -74 of the draft Withdrawal Agreement cover:
- public procurement procedures launched before the end of the transition period and not yet finalised on the last day of it, and
- the award of contracts made under framework agreements where the procurement of the framework agreement was launched before the end of the transition period until the framework expires (or is terminated).
The EU proposal
The Commission has proposed that the detailed rules and the general principles – including non-discrimination based on nationality – that apply to public procurement in the EU Member States and the UK will continue to apply to:
- public procurement procedures launched before the end of the transition period and not yet finalised on the last day of it; and
- the award of contracts made under framework agreements where the procurement of the framework agreement was launched before the end of the transition period until the framework expires (or is terminated).
This may in certain cases last for a number of years after transition ends, particularly because framework agreements can be for up to four years (and more in exceptional circumstances).
The UK’s priority is to ensure that “public procurement continues to function as smoothly as possible, avoiding disruption to public procurement markets for the benefit of suppliers and procurers”.
The Government states that it “broadly agrees with the EU’s position”, but will be seeking:
- Further reassurances about the ability of UK companies to bid into EU-level procurement exercises organised by the EU institutions before the date of withdrawal, and to be treated equally, without discrimination.
- An extension to cover ongoing procurement contracts with both the EU Member States and the EU institutions.
Euratom
The European Atomic Energy Community (Euratom) was founded to contribute to the formation and development of Europe’s nuclear industries, to guarantee high safety standards and to prevent nuclear materials intended principally for civilian use from being diverted to military use.
Euratom provides the basis for the regulation of civilian nuclear activity, implements a system of safeguards to control the use of nuclear materials, controls the supply of fissile materials within the EU Member States and funds leading international research into nuclear fission and nuclear fusion.
The UK became a member of Euratom 1 January 1973 and announced on 26 January 2017 that it intended to withdraw from Euratom as part of the Brexit process. In the UK, the Office for Nuclear Regulation (ONR) is currently responsible for regulating nuclear safety and security and will take on the regulation of nuclear safeguards.
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