A seed of doubt – on the practical difficulties of the ECA Repeal Act

On Sunday evening I tweeted a list of  over 50 of the main EU agencies whose functions will likely have to be assumed or replaced by their UK equivalents upon “Brexit Day”

My point, misunderstood by some, was more a technical one. Whether you believe these entities are a collective symbol of ever increasing Brussels bureaucracy, make an essential contribution to the fair and efficient administration of the European Union or something in the middle, the reality of their existence requires one to acknowledge the challenge in attempting to incorporate the current acquis of EU law into domestic legislation.

Whether the UK will have any use for a great many of these agencies in the future is very much an open point. I would happily accept that, for many of these agencies, it would be unnecessary to establish new UK equivalents or to even materially expand the mandate of current agencies who may well be capable of assuming the existing functional responsibility. As laws are reviewed and amended over time, it may even be that the functional responsibilities themselves fall away.

However, as the Government will shortly be putting pen to paper on a grand “Repeal Act”, seeking to repeal the European Communities Act and to incorporate all EU legislation as of the date upon which the UK officially leaves the European Union (I refer to this as “Brexit Day”) into UK law, it is instructive to look at some of the practical difficulties presented by the UK’s acceptance of EU law for over 40 years.

Let’s take an agency at random: the Community Plant Variety Office (CPVO).

The CPVO is (apparently) an agency of the European Union, located in Angers, France. Its task is to administer a system of plant variety rights (also known as plant breeders’ rights), a form of intellectual property right relating to plants, with over 41,000 titles currently in force.

IP protection for plant breeders is largely governed at a European level through the Council Regulation (EC) No. 2100/94 of 27th July 1994 on Community plant variety rights(b) as amended by Council Regulation (EC) No. 2506/95 of 25th October 1995(c) (the “Community plant variety rights order”). A “Community Plant Variety Right”, granted upon application to the CPVO, gives the holder the right an exclusive right to market this protected variety of plant within the European Union.

However, should a plant breeder in the UK wish to obtain a license to use a protected variety, they must apply for a license pursuant to the Patents and Plant Variety Rights (Compulsory Licensing) Regulations 2002 – a UK statutory instrument which acknowledges the right of the CPVO to grant licenses.

While those expecting the Government to prioritize issues relating to the granting and registration of intellectual property in plants in any Brexit negotiations are likely to be disappointed, the relevant UK legislation will, at some point, need to be considered.

Following Brexit Day, a plant breeder (based in North Islington, say) may wonder how he might prevent someone from exploiting his work without his permission. As the Community Plant Variety Rights Order is an EU Regulation, on Brexit Day this would cease to have direct effect in the UK. There would appear, therefore, be no law in place which would prevent a callous rival from stealing this chap’s plants unless the ECA Repeal Bill makes provision for this. Assuming it will, references to the CPVO would likely need to be amended as this agency would have no further jurisdiction over the UK. The powers currently exercised by the CPVO would probably need to be delegated to the UK-based Plant Variety Office. As you will see below, this would also require tweaks to existing UK legislation.

What if this fellow wishes to use a protected plant variety in the UK? He would be required to first look to determine whether or not this species has been granted a non-exclusive, compulsory license by the CPVO under the Community Plant Variety Rights Order. As the Community Plant Variety Rights Order would no longer be considered to be UK law, it’s unlikely that any license would be applicable in the UK. Putting this to one side, let’s assume that an exercisable license exists in the UK. They would then be required to apply to the Comptroller General of Patents under the Patents and Plant Variety Rights (Compulsory Licensing) Regulations 2002, attaching the CPVO order, who might then be willing to grant the license in the UK on reasonable terms. Would the Comptroller General of Patents would continue to recognize orders received from the CPVO? The legislation (if un-amended) suggests they would be required to do so.

In the case of confusion, this fellow could of course seek to speak with the UK-based Plant Variety Office. However, pursuant to the Plant Variety Rights Office (Extension of Functions) Regulations 1995, the Plant Variety Office may, in these matters, only exercise such functions as delegated to it by the CPVO. Assuming that the CPVO no longer has any jurisdiction within the UK, this seems peculiar.

The CPVO is, perhaps unsurprisingly, little referenced under UK law. Other agencies such as the European Commission have many hundreds of references across UK statutory instruments, Acts of the Scottish Parliament, Measures of the Northern Ireland Assembly and so on.  All of these will need to be reviewed and potentially amended.

Of course, that something is difficult is not a particularly good idea for not doing it. In fact, a great many national achievements are a result of doing the right thing in difficult circumstances. However, while any means may justify a positive end, we have yet to be told what Brexit will mean in practical terms, whether the effort, the expense and the sacrifice will ultimately be worth it.

The fact remains that the process of potentially amending a vast body of UK law is a considerable task, one which seems unachievable without the wide-spread use of statutory instruments to plug the legislative gaps. This represents a fundamental challenge to our democracy. That large swathes of law in areas as diverse as financial services, migration and even plant breeding can be subject to the whim of ministers and enacted without parliamentary scrutiny is troubling.

Having now planted the seeds of Brexit, the Government seems to have virtually no idea as to what it will eventually reap come the harvest of Spring 2019.
Disclaimer – I am not an expert in the field of plant regulation. Nothing in this piece should be construed as legal advice as to how the system for the granting of patents or licenses for plants and related biological material currently operates within the EU either now or in the future. 

9 thoughts on “A seed of doubt – on the practical difficulties of the ECA Repeal Act

  1. Isn’t slightly more of a mess than that? AIUI, under the proposed “Geat Repeal Bill,” all EU law becomes part of U.K. Law. So our North Islington plant grower must make his application to the CPVO, as now. However, the CPVO will presumably just bin his application as junk mail.

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  2. One basic point – the plant variety Regulation *would* still be part of UK law post-Brexit, since the ‘Great Repeal Bill’ will preserve EU law as UK law until repealed or amended. I assume there will be a ‘catch-all’ definition of pre-existing EU law for this purpose.

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  3. Not wanting to send you back to the plant rules (I guess you could treat this as a point of principle for all EU Regulations, and probably a fair few Directive based instruments) but… who has jurisdiction in the event of a dispute? Presumably if it’s an EU tribunal then the underlying EU legislation will need to be adopted *subject to such amendments as grant jurisdiction over disputes (and appeals therefrom) to an appropriate UK tribunal*. Assuming we have one.

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  4. Several of the agencies in your list may be dropped. For example if the UK decides not to participate in the Creative Europe or Erasmus+ programmes (or their EU27 successors post 2020) then the Education, Culture etc Agency will not be needed by UK. If however it seeks to follow the Norway or Montenegro path and seek to join those programmes, for an annual fee, the EU may accept it, so the Agency remains as the selection and approval body for applications.

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  5. There are essentially 3 types of EU derived law for Great Repeal Act purposes. Substantive – those that create standards or autonomous rules (e.g. Rome II on applicable law): domestic procedural – where an EU agency needs to be and can be replaced with a domestic agency that need not interact with others (e.g. FSA, RPA): and cooperative procedural – where the domestic agency must collaborate with agencies in other MSs (e.g. Euro extradition; Brussels I Recast on jurisdiction and judgments). GRA works fine for substantive; will prove massively unwieldy for the second as it will have to contain 1000s of pp. of repeals and amendments or, far more likely a whopping Henry VIII power; and incapable of dealing with the 3rd, since reciprocity or consent is the key. The way many agencies are set up is in fact a blend of all 3 – substantive standards; some purely domestic functions with those standards; some mutual recognition/cooperation measures (think AVMS Directive for instance). The massage is none of this is easy – it is very hard; some of it will be got badly wrong With individually harsh consequences which will generate high stakes litigation; and some key parts are in fact presently impossible to deliver (category 3). These last areas will sadly be ignored in public and Parliamentary debate and largely in Exit negotiations where market access, tariff and duty debate will hog the airtime. Yet some of these issues if unresolved are very bad news for U.K. Plc – like Brussels I Rwcast and legal services, a huge invisible earner.

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