One of the open questions is the extent to which case law, developed by the European Union’s courts, will be binding or persuasive on courts in the United Kingdom after 1 January 2021. This is the date on which the UK exits its current transition period and is no longer bound by decisions and the law of the European Union. The basic principle is that any case law made before the end of 2020 will continue to be binding on British and Northern Irish Courts as so-called “retained EU case law”.
However, as of 2021, under the European Union (Withdrawal) Act 2018, Section 6 it is stated specifically that a court or tribunal in the UK will not be bound by any decisions made by a European Court. Not surprisingly, a court can also not refer any matter to the European Court after that date. However, a court may “have regard to anything done or after (this date) by the European Court, another EU entity or the EU so far as it is relevant to any matter before the court or tribunal”. At least for intellectual property law, these provisions are likely to be highly significant since much of modern British IP law is based on EU legislation and it would seem appropriate that courts in the UK could take into account European decisions, even if they were made after Brexit.
A recently deposited statutory instrument “The European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020” has modified the provisions slightly and in Section 3 the Court of Appeal in England and Wales, as well as the Scottish Inner House of Sessions and the Northern Irish Court of Appeal, are given the power under Section 4 to deviate from so-called retained EU case law, i.e. case law which was made before Brexit. The reason given for empowering more courts in addition to the Supreme Court was so “allow EU case law to evolve more quickly than otherwise might have been achieved” (Explanatory Memorandum Section 2.6). This may certainly be appropriate in some areas of domestic British law. For intellectual property law with its international implications, the risk of diverging decisions between the UK and rest of Europe could lead to more uncertainty and contradictory decisions.
As with many aspects associated with Brexit, there is a lot of uncertainty about how the laws will continue to operate. Please feel free to contact us if you have a question.
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