UK notifies Council Secretariat of its withdrawal from UPC Agreement

UK notifies Council Secretariat of its withdrawal from UPC Agreement

21 July 2020

The Preparatory Committee of the Unified Patent Court (UPC) published yesterday UK Withdrawal from the UPCA, reporting that “A deposit of the withdrawal notification of ratification has been deposited with the Council Secretariat”  and that Amanda Solloway, the UK IP Minister, had made a parliamentary written statement in the House of Commons. Ms Solloway reported that, “by means of a Note Verbale”, the UK has withdrawn its ratification of the UPC Agreement and the UPC’s Protocol on Privileges and Immunities, and its consent to be bound by the UPC Agreement’s Protocol on Provisional Application (PPA). She explained (as she did in March to the House of Lords EU Justice Sub-Committee’s Chair, see here) that, in view of the UK’s withdrawal from the EU, the UK no longer wishes to be a party to the UPC system; participating in a court that applies EU law and is bound by the CJEU would be inconsistent with the government’s aims of becoming an independent self-governing nation. She stated that the UK had decided to withdraw its ratification now to ensure clarity regarding the UK’s status in respect of the Agreements and to facilitate their orderly entry into force for other states without the UK’s participation. The UPC Preparatory Committee stated that it will now convene to discuss the consequences of the UK withdrawal and agree a way forward. 

One issue that is not clear is whether the UK’s deposit of the withdrawal notification is sufficient or whether any further steps are required to ensure the withdrawal is effective. The UPC Agreement provides that instruments of ratification be deposited with the General Secretariat of the Council of the EU (i.e. the Council Secretariat) but, although notification to the Council Secretariat (via a “Note Verbale”) may therefore be sufficient to withdraw a ratification, there is no provision in the Agreement for withdrawal. The Vienna Convention on the Law of Treaties provides mechanisms for withdrawal from a treaty containing no withdrawal provisions, but only if the treaty is being applied provisionally (article 25) or is in force (articles 54 and 56); it appears that UK withdrawal could be effective under article 25 if the states agree to apply part of the Agreement provisionally and then the UK notifies the other states that it does not intend to become a party to the Agreement. Regarding provisional application of the Agreement, there is another issue: under article 3 of the PPA, the UK’s consent to the provisional application is required. Therefore, there was a view that the UK would not withdraw its ratification of the Agreement and its consent to provisional application until (if the other states decided to go ahead with the UPC) after the provisional application had commenced, but it now appears that a protocol to amend the PPA will be required.

If the German government, following the results of its consultation (reported here), decides to proceed with the draft legislation enabling it to ratify the UPC Agreement, ensuring the UK’s withdrawal is legally effective is important because this would remove one ground of a constitutional complaint threatened by the FFII (reported here), i.e. that Germany is not able to ratify an agreement that a non-EU state (the UK) has ratified. Although, as reported here, the European Commission stated that Germany would still be entitled to ratify (the Council of the EU’s view is awaited), the Commission’s non-binding opinion alone would be unlikely to prevent this being included as a ground for a constitutional complaint, together with other potential grounds based on incompatibility of the UPC Agreement with the German Basic Law. 

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