The UK and the Netherlands continue preparations for the UPC


The Protocol on Privileges and Immunities of the Unified Patent Court (PPI) will give legal personality to the Court and provide the Court and its judges, Registrar and other staff with the various privileges and immunities.  In order to come into force it requires France, Germany, Luxembourg and the UK to deposit their instruments of ratification (or equivalent) with the Council of the EU.  (The UPC’s Court of Appeal and Registry will be located in Luxembourg, and France, Germany and the UK will each be hosting a part of the Court’s central division as well as local divisions.)  In the past few days, both the UK and the Netherlands (which is also hosting a local division, and has ratified the UPC Agreement) have taken steps regarding the PPI.  In the UK, a copy of the PPI (in the form of a Command paper, with an explanatory memorandum) was laid in Parliament on 20 January 2017.  Yesterday the Netherlands deposited its instrument of ratification of the PPI with the Council of the EU (recorded here).

The UK signed the PPI in December 2016, shortly after announcing its intention to ratify the UPC Agreement.  However, the laying of the PPI before Parliament, and it remaining there for at least 21 ‘sitting’ days, is a constitutional step required (under the Constitutional Reform and Governance Act 2010) before the UK can ratify the PPI, and then ratify the main UPC Agreement itself.  The other requirement is national legislation on privileges and immunities, which is expected to be in the form of two Orders (Statutory Instruments), one for the UK, and one for Scotland (in respect of certain devolved matters), to be passed by the respective Parliaments. The UK would then also be ready to ratify the UPC Agreement.

There is a theoretical possibility that the UK’s UPC ratification process might be blocked by the UK (or Scottish) Parliament in the above procedures, but that is considered unlikely.  Therefore, the UK is expected to complete its UPC ratification process by end-April.  Of course, there still remains the question of what will happen to the UPC after Brexit but, as reported here, this will form part of the Brexit negotiations between the UK and the EU.  As is well known, the UK government planned to trigger Article 50 by end-March.   It is possible (but seemingly unlikely) that the triggering of Article 50 may be delayed due to the Supreme Court’s decision today (judgment, press summary) that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the EU (i.e. to ‘trigger Article 50’ of the TEU).  However, even though the required Act will require passage of its draft (in the form of a bill) through both Houses of Parliament, this can take place very quickly for urgent legislation. Hence, in as far as those Brexit negotiations relate to the UPC, there seems little prospect of any delay of any significance. Further, the Supreme Court decision can have no delaying effect on the actual UK ratification timetable.  The UPC can therefore still be expected to start on 1 December as announced on 16 January.

Andrew Bowler


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