The UPC: a model for a new UK/EU court system?

Mathys & Squire Partner and patent attorney, Caroline Warren, explores whether the Unified Patent Court (UPC) changes the landscape for court structures in the UK and EU.

Unified Patent Court: The Post-Brexit Structure

On 6 July 2018 the Cabinet met at Chequers to discuss the UK’s vision for the impending new relationship between the EU and the UK following the Brexit referendum.

The Cabinet statement summarising the meeting noted that “the Government’s vision for a future relationship, built around an economic partnership and a security partnership, remained fundamentally sound” but that the position needed to “evolve” to provide a “precise, responsible and credible basis for progressing negotiations” and achieve outcomes that are in the UK’s national interest and work for both the UK and the EU.

As such, the statement proposes a “joint institutional framework” to provide for the “consistent interpretation and application of UK-EU agreements”.

While the statement provides no further details on what such a framework might look like or how it might be implemented, one possible model could come from the proposed UPC system that was in development long before Brexit was first mentioned.

The UPC system provides a new international court that is “common to the member states” but lies largely outside the jurisdiction and control of the UK and EU court systems. The court system was designed while the UK was within the EU but, due to opposition for the project from Spain and Italy, the court was never an EU-led creation. Instead, the UPC will be a largely independent international court straddling the EU and UK jurisdictions.

Due to its unusual history and genesis, creation of the new court has required amendment of the Brussels 1 Regulation in order to recognise its jurisdiction and enable recognition of UPC judgements.

The work that has gone into this project over the past few years may now provide a mechanism by which alternative court structures can be established by mutual agreement between the EU and the UK, or at least serve as a model for such court structures.

Even in this international court, however, the CJEU retains a limited role in providing interpretation of aspects of the law in certain situations. Therefore, as always, politics will trump legalities and it remains to be seen whether the limited role of the CJEU in the proposed court structure will be acceptable to the newly-energised Brexiteers.

To read Caroline’s thoughts in The Times of London – please click the image below. 

Caroline is part of the Mathys & Squire Brexit team and her practice includes management of large portfolios for multinational organisations, including representing clients at hearings before the European Patent Office. Caroline also enjoys advising small businesses on their IP strategy, both in the UK and internationally. For any questions about Brexit or the UPC, please email Caroline via [email protected].