Category: Brexit

Book Review: Federico Fabbrini, Brexit and the Future of the European Union

Book Review of Federico Fabbrini, Brexit and the Future of the European Union, Oxford University Press, 2020, 160 pp, ISBN: 9780198871262.

A European Defining Moment: The ‘Ever Closer Union’ in the Aftermath of Brexit

*Michele Corgatelli 

Five years after the end of World War II, French statesman Robert Schuman proposed a Franco-German cooperation in the coal and steel industry aimed at making future conflicts between the two countries ‘not merely unthinkable, but materially impossible’.[1] On such foundations, Europe was envisioned as a dynamic process of integration: ‘(it) will not be made all at once, or according to a single plan’, the Schuman Declaration states; ‘It will be built through concrete achievements which first create a de facto solidarity’.[2]

The strive towards an ‘ever closer union’ [3] represents therefore a purpose, a goal, and even a promise. However, the fact that Europe was not meant to be built in a day can determine a state of permanent institutional restlessness, especially when the integration path cyclically stalls, or shows its weaknesses. In this sense, it has been argued that the United Kingdom’s departure (‘Brexit’) caused a ‘Machiavellian moment’, forcing the Union to face its own temporal finitude, proving that the project could eventually fail and fall apart.[4] Unquestionably, Brexit tests once again the willingness to take the project a step further after a considerable jolt to the European institutional architecture.

In his recent book ‘Brexit and the Future of the European Union’, Federico Fabbrini proposes a multi-facet analysis of this disruptive event through normative and historical lens, thus reconstructing its concise and clear record, from which to draw, through easy consultation, the sequence of facts that overlapped in the past years. Moreover, his inquiry conveys the dynamic dimension of the integration process, separately considering the Union ‘during’, ‘because of’, ‘besides’, ‘after’, and ‘beyond’ Brexit.

The book starts by outlining the remarkable synergy among European institutions and unity among other member States that emerged during the withdrawal negotiations (p. 9). However, the challenges posed by the ‘transitional’ implications of Brexit, for example the re-equilibrium of the balance of powers within European institutions (p. 36) add up to a series of past and present crises that have shaken the Union, namely the Euro-crisis, the migration crisis, the rule of law crisis, climate change, the enlargement to new members, and coronavirus (pp. 61-75).

The first chapters, through a logical progression, functionally lead to the dissertation of the post-Brexit future, where Fabbrini shows that the real paralysing obstacle to a further European integration is represented by the unanimity requirement for the amendment of the treaties (p. 95).

The incoming Conference on the Future of Europe could carry the transformative power of the Messina Conference of 1955 (p. 119) which broke through a paralyzed European project leading to the establishment of the European Economic Community and the European Atomic Energy Community (pp. 119-121) but could also fail like other previous attempts (pp. 121-123). Fabbrini proposes a solution to overcome the fossilization of the treaties: the draft of a new one, the ‘Political Compact’, submitted to a different ratification rule – not the unanimity, but a super-majority of for example three-quarters of the EU Member States (pp. 110, 124-129). [5] Moreover, ‘the treaty would not apply to the non-ratifying states, guaranteeing them the free choice of whether or not to join the Political Compact, with all the consequences that follow’ (p. 125).

Although the negotiation for further integration will certainly be easier without a champion of opt-outs halting it, [6] it is worth recalling that the European Constitution was turned down in 2005 by voters in France and the Netherland, while Irish voters rejected the Treaty of Nice in 2001 and the Treaty of Lisbon in 2007 (p. 98) proving that veto is an obstacle to future progresses even after Brexit.

The Author’s choice to recall the American precedent of the Philadelphia Convention of 1787, which reinterpreted its mandate to propose amendments to the Articles of Confederation and drafted the Constitution instead (pp. 127-128), is particularly significant. Indeed, that precise historical outcome has been considered one of the very few ‘constitutional moments’, a concept ‘distinguished by lasting constitutional arrangements that result from specific, emotionally shared responses to shared fundamental political experiences’.[7]

The American example, whose historical scope and value were not vitiated by the presence of a super-majority ratification mechanism, proves that unanimity is not necessary to lay the foundation of a lasting constitutional architecture. The existential threat to the European Union posed by Brexit, and the coronavirus crisis, could in fact play the role of one of those unique path-dependent moments. Fabbrini’s proposal of a ‘Political Compact’ provides a remedy to the block represented by the unanimity rule, that prevents the Union to effectively utilize this moment and to progress towards an ‘ever closer union’, although merely concentrical.[8]

If the Schuman Declaration of 1950 successfully led to the establishment of the European Coal and Steel Community in 1951, the other proposed area of European cooperation, namely the one in military and defence, was rejected by the French Assemblée Nationale, that voted down the European Defence Community in 1954 (pp. 119-120). After a momentary paralysis, the transformative power of the Messina Conference, a year later, founded the modern Europe (pp. 119-121).

After Brexit, a big halting force to integration is no longer part of the Union; [9] the Conference on the Future of Europe, striving on a renewed Franco-German cooperation, could in fact turn out to be a defining moment, if the right normative solutions – such as the ‘Political Compact’ proposed by Fabbrini – are taken to overcome the current European architectural rigidity caused by the unanimity impasse.

To conclude, ‘Brexit and the Future of the European Union’ stand out for clarity: it combines a holistic approach to a complex event, with a concise writing, devoid of unnecessary socio-political mannerisms. At the same time, the objective analysis is not an aseptic reconstruction of Brexit’s implications, being constantly integrated with original systematic reconstructions.[10]  Most importantly, the analysis flows from a problem, namely the obstacles to reform, to a proposed solution, making the book not only academically original, but socially useful as well.

*Michele Corgatelli, LLM by Research Candidate, University of Glasgow.

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[1] Schuman Declaration (9 May 1950, whose recurrence is named ‘Europe Day’). Robert Schuman, who during the War escaped deportation to the Dachau concentration camp, was given the title of ‘Father of Europe’ after he left the office of first President of what is now the European Parliament. For the contribute of Jean Monnet to the Declaration, see Michael Burgess, ‘Entering the Path of Transformation in Europe: The Federal Legacy of the Schuman Declaration’ (2011) 29(2) Fr. Politics Cult. Soc. 4.

[2] ibid.

[3] Solemn Declaration on European Union (Stuttgart, 19 June 1983).

[4] Luuk van Middelaar, ‘Brexit as the European Union’s “Machiavellian Moment”’ (2018) 55 CML Rev. 3, 5.

[5] Fabbrini championed the ‘Political Compact’ in his previous study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs (‘Possible Avenues for Further Political Integration in Europe – A Political Compact for a More Democratic and Effective Union?’), available at: <https://www.europarl.europa.eu/thinktank/it/document.html?reference=IPOL_STU%282020%29651849>.

[6] The other champion of opt-outs is Denmark. Rebecca Adler-Nissen, ‘Behind the scenes of differentiated integration: circumventing national opt-outs in Justice and Home Affairs’ (2009) 16(1) JEPP 62, 63.

[7] ‘The overwhelming majority of the constitutions that we know do not have these specifics. Constitutions serve other, more technical, goals (…). One of the drawbacks of a constitution that emerges without the blessing of a constitutional moment is that it does not contribute to a sense of union, or to the formation of identity, among members of the society to which it applies’. András Sajó, ‘Constitution without the constitutional moment: A view from the new member states’ (2005) 3(2-3) ICON 243, 243.

[8] The post-Brexit attraction to the ‘variable geometry’ model of European integration is indeed a peculiar phenomenon, that could come from two sources: ‘According to one view, the distrust of the EU expressed by the majority of British voters reflects similar feelings in other parts of the European Union, and this implies that the Union should evolve into a less centralized and more flexible organization so as to assuage the growing mass of Eurosceptic citizens across Europe. Another explanation might be that the UK’s defection may act as an incentive for some other countries to advance the integration project more vigorously.’ Bruno De Witte, ‘The future of variable geometry in a post-Brexit European Union’ (2017) 24(2) MJECL 153, 155-156.

[9] ibid, 154.

[10] For instance, the Author detects three competing visions of European integration: ‘polity, which requires solidarity and a communion of efforts towards a shared destiny; (…) market, designed to enhance wealth through commerce, but with as limited redistribution as possible; (…) [autocracy,] which instead sees the EU as a vehicle to entrench state authoritarian rule, based on national identity and sovereignty claims, but with crucial transnational financial support.’ (60, 75-80).

The UK Adequacy Decision and the Looming Possibility of a Schrems III

by Osal Stephen Kelly*

Introduction

In July 2020, the Court of Justice of the European Union (“CJEU”) delivered its judgment in the Schrems II case brought by the Austrian lawyer and activist Max Schrems, with far-reaching implications for data protection policy and practice. One question of particular urgency is what the consequences will be for the continued flow of personal data from the EU to the UK; while the EU-UK Trade and Cooperation Agreement temporarily allows these flows to continue on the same terms as between member states, this will end on 30th June 2021.  The purpose of this period is to allow for the EU Commission to determine whether or not to grant an “adequacy decision” that would confirm that the UK provides a level of protection essentially equivalent to that of member states, which would allow for these important transfers to continue indefinitely. While the Commission has issued a draft adequacy decision, some of the issues identified by the European Data Protection Board (“EDPB”) in its recent opinion on the draft expose frailties in these protections that could form the basis for a legal challenge in the future. It is submitted that there are two areas of particular vulnerability that would be key in any such challenge. First, there are serious unresolved questions around the powers of UK and US authorities to access data for security purposes. Second, the UK’s emerging post-Brexit constitutional and legal framework is likely to be somewhat less advantageous to data subjects vindicating their rights than was the case when EU law had direct effect.

Schrems II

Schrems II comes after another case brought forward by Mr Schrems who had already challenged the previous framework as well (Schrems I). The Schrems II case arose from a complaint concerning the transfer of his data from Facebook Ireland to Facebook Inc. (based in the United States). The complaint was made to the Irish Data Protection Commissioner and resulted in the Irish High Court making a preliminary reference to the CJEU. In its submissions, Facebook sought to justify these transfers as permitted by the EU Commission’s Privacy Shield decision, which set additional safeguards for data moving from the EU to the US.  However, the Court found that the Privacy Shield was invalid as the protections offered by US law did not in fact afford the required level of protection. The Court stressed the importance of “effective and enforceable data subject rights” (para. 177 of judgment) and found that data subjects did not enjoy such rights under the Privacy Shield. Particular emphasis was placed on the lack of limits on the power of surveillance agencies to collect data on individuals held by companies such as Facebook (para. 180). While the Court recognised that data controllers could in principle rely on standard contractual clauses approved by the Commission to allow cross-border data transfers to continue, it noted that such clauses did not necessarily protect data from unlawful access by the authorities of the receiving country (para. 141).

from jonesday.com

Schrems III?

Although the UK ceased to be subject to EU law from 31st December 2020, the GDPR has been incorporated (with amendments) into UK domestic law, in line with Section 3 of the European Union (Withdrawal) Act 2018. This amended version, referred to as the “UK GDPR”, now forms the basis of the UK’s legal framework for data protection, along with the UK’s existing Data Protection Act 2018 (draft adequacy decision, Recital 14), and this is the framework that was examined in the Commission’s draft adequacy decision, and, subsequently, the EDPB’s opinion, released on 13th April 2021. Although important, the opinion in itself is non-binding and the final decision on adopting the adequacy decision rests with the Commission, so it is likely to be approved.

The EDPB opinion, read in light of Schrems II, would require the UK’s intelligence operations to apply particular scrutiny over the compliance with the (EU) GDPR. While the tone of the opinion as a whole is very measured, the EDPB nonetheless expresses “strong concerns” (para. 88 of opinion) over the data-sharing agreement between US and UK authorities pursuant to the US CLOUD Act. The Act requires US companies to disclose information stored on overseas-based servers on foot of a valid warrant. The EDPB notes that the Commission’s draft decision refers to non-binding “explanations” that were provided to it by UK authorities (para. 88 of opinion). Critically, however, the EDPB notes that these explanations did not seem to comprise “any concrete written assurance or commitment” on the part of the UK Government. It is difficult to see how mere explanations without substantive legal force could be relied upon by data subjects in enforcing their rights, which is concerning, given that the existence of “effective and enforceable data subject rights” was deemed vitally important in Schrems II.

Moreover, para. 189 of the opinion highlights how broad the general exemption is for intelligence-related processing, stating that “national security certificate DPA/S27/Security Service provides that until 24 July 2024, personal data processed ‘for, on behalf of, at the request of or with the aid or assistance of the Security Service or’ and ‘where such processing is necessary to facilitate the proper discharge of the functions of the Security Service described in section 1 of the Security Service Act 1989’ are exempted from the corresponding provisions in UK law to Chapter V GDPR in relation to transfers of personal data to third countries or international organisations”.

This provision is similarly open-ended to Section 702 of the US Foreign Intelligence Surveillance Act, which had been considered not to afford a sufficient level of protection to data flows in Schrems II (para. 180 of judgment). If Part V GDPR (and equivalent provisions in the UK GDPR) does not apply to intelligence processing, personal data would be transferred to US authorities and thus fall within the scope of the Court’s ruling in Schrems II.

Given that the UK is no longer a member of the EU and subject to the jurisdiction of the CJEU, issues also arise in relation to the UK’s overall legal framework (para. 54 of opinion). The Commission has placed great emphasis on the fact that the UK will continue to be a party to the European Convention on Human Rights (“ECHR”) and thus of the “European privacy family” (press release accompanying the adequacy decision). However, while the set of rights listed in the ECHR are also included in the EU’s Charter of Fundamental Rights, in Schrems II the Court notes that the ECHR is not part of the EU law acquis (paras. 98, 99 of judgment). Furthermore, the UK Government will review the Human Rights Act 1998 which implements the ECHR in the UK. The review will consider whether courts have been “unduly drawn into matters of policy”. Given that the CJEU identified “effective and enforceable data subject rights” as key in determining whether a country provided an adequate level of protection (para. 45 of judgment), any dilution of the rights of citizens to invoke their ECHR rights would be likely to count against the UK in the event of a legal challenge.

Conclusion

The foregoing indicates that a credible case could be brought before the Court to challenge the validity of the adequacy decision in the future. On a practical note, data controllers can at least be reassured by the CJEU’s clarification in Schrems II that an adequacy decision enjoys, in effect, a presumption of legality until it is successfully challenged (para. 156 of judgment), and accordingly they should not incur any liability for data transfers while the adequacy decision remains in place, for whatever period that may be.

*Osal Kelly is a postgraduate Law student in the Law Society of Ireland in Dublin and holds an undergraduate degree in Philosophy from Trinity College, Dublin. He currently works in the Irish public service. This article is written in a personal capacity.

 

EU Data Protection in Trade Agreements

 

by David Scholte*

Practical solutions to a theoretical conundrum

After the implementation of the General Data Protection Regulation (GDPR) in 2018, the European Union (EU) has been striving to keep up the high standards of protection of personal data transfers of EU citizens throughout the world. In order to secure these standards, it has two powerful different tools at its disposal.

Tool number one is the ´adequacy decision´. The EU commission will ´determine […] whether a country outside of the EU offers an adequate level of data protection´.(European Commission, Adequacy Decisions) Adequate means comparable to the protection offered by the EU. If so determined, the cross-border data flow between the EU and the third country can take place unimpeded and without any further safeguards. Tool number two are data protection provisions in the trade agreements between the EU and third countries. (See art. 28.3(2)(ii) CETA, art. 8.3 JEFTA and art. 8.62(e)(ii) EU-Singapore FTA)

The EU is a prominent advocate of liberalising (digital) trade but will always vehemently protect its data protection standards; this is made explicit in the statement that ´the EU data protection rules cannot be subject to negotiations in a free trade agreement´. (COM(2017) 7 final)

Data protection clauses in previous trade agreements used to be sectorial provisions modelled after art. XIV from the multilateral ´General Agreement on Trade in Services (GATS). However, with the changeability of digital trade and with the implementation of the broad scoped GDPR, the EU´s view was that new provisions were needed.

´These horizontal provisions rule out unjustified restrictions, such as forced data localisation requirements, whilst preserving the regulatory autonomy of the parties to protect the fundamental right to data protection´. (COM(2020) 264 final)

In 2018 the Commission published horizontal draft provisions that it intended to include in future trade agreements. It is noted that the provisions modeled after the GATS article have always included the requirement of ´necessity’ and stated that any measure taken with regard to the protection of personal data must not be a ´means of arbitrary or unjustifiable discrimination [or] a disguised restriction´. However, the new provisions would be applicable throughout the agreement and, most importantly, do away with the conditions and limitations found in the old type of provisions.

There are no longer requirements that must be fulfilled before a measure with regard to personal data can be taken. The Draft provisions regarding data protection are as following:

  1. Each party ecognizes that the protection of personal data and privacy is a fundamental right […]
  2. Each party may adopt and maintain the safeguards it deems appropriate to ensure the protection of personal data and privacy, including through the adoption and application of rules for the cross-border transfer of personal data. Nothing in this agreement shall affect the protection of personal data and privacy afforded by the Parties´ respective safeguards.
  3. Each party shall inform the other Party about any safeguard it adopts or maintains according to paragraph 2.
  4. For the purposes of this agreement, ´personal data´ means any information relating to an identified or identifiable natural person.
  5. For greater certainty, the Investment Court System does not apply to the provisions in Articles 1 and 2.
From briefingsforbritain.co.uk

Although the EU had proposed this provision in trade negotiations with Australia and New Zealand. the first agreement where this new type of rules has been fully implemented is the EU-UK Trade and Cooperation Agreement (TCA), albeit in a slightly different form.

  1. Each Party recognises that individuals have a right to the protection of personal data and privacy and that high standards in this regard contribute to trust in the digital economy and to the development of trade.
  2. Nothing in this Agreement shall prevent a Party from adopting or maintaining measures on the protection of personal data and privacy, including with respect to cross-border data transfers, provided that the law of the Party provides for instruments enabling transfers under conditions of general application for the protection of the data transferred.
  3. Each Party shall inform the other Party about any measure referred to in paragraph 2 that it adopts or maintains.

The compromise between the position of the parties reflects the difficulties in translating drafted horizontal provision into real negotiations. What is clear is that the all-encompassing, condition-less provision that the Commission had envisioned did not come to fruition. In the first paragraph data protection is no longer a fundamental right, something that is striking among purists and puts the protection of data legally on a lower pedestal than if it would have remained a fundamental right.

Moreover, in the draft provision, paragraph two gives both parties full authority over the adoption of safeguards, with no conditions attached. In contrast, the adopted TCA’s provision is worded quite differently: ´nothing in this agreement shall prevent […] provided that´ instead of ´Each party may adopt´. This gives the paragraph a negative wording with again some conditions attached. It bears a resemblance to the GATS article meaning that it would not be without conflict and possible dispute. (WTO Analytical Index, GATS – Article XIV (Jurisprudence))

Because of the transition period, under the agreement data flows are still unrestricted as long as the UK continue to apply the data protection rules, based on EU law (EU-UK Agreement part seven, Article FINPROV. 10A(4)). Moreover, with a pending adequacy decision, a large differentiation between the UK and EU data protection is not likely to arise. When the data protection in the UK is deemed to be adequate the article will become moot.

However, this quite substantial modification from the original proposal by the EU does show that the EU might be flexible on the wording of such rules. In the TCA case, the EU position is explained by the special and interconnected relationship with the UK, a European country and a former Member State. Nonetheless, it is interesting that the EU Commission did accept different draft provisions, although it had defiantly stated that those provisions would not be subject to negotiations.

In the future the EU will strive to include such horizontal provision in all future trade deals. Indeed, in the trade negotiations with Australia and New Zealand the provisions proposed are again mirroring the draft provisions. With New Zealand already having received an adequacy decision from the Commission, the question remains if a horizontal provision is a priority for both parties. Considering New Zealand’s ´culture of compliance´ (Henning, 2020) data protection will not be a major hurdle and one can expect the horizontal provision to be included in the upcoming EU-New Zealand trade deal without significant amendments.

For countries without this close connection to the EU data rules, such as Australia, the inclusion of such broad horizontal provision could be problematic. Third countries have the reasonable worry that such blanket exception could be used for ´otherwise unjustifiable IT and data localization requirements´. (Yakovleva & Irion, 2020, 219)

The provisions in the Australia and New Zealand deals will give a clearer idea on what these new horizontal provisions mean for EU trade negotiations and deals. It seems however that the Commission’s position on the matter is far more practical and reliant on adequacy decisions, thus unilateral, than it presents to be at first glance. The full regulatory autonomy that the EU strives for has not been achieved in the TCA and will thus most likely not be achieved in future trade deals. A missed opportunity.

 

*David Scholte is a Junior Lecturer in EU Law at Utrecht University, the Netherlands. He is also currently pursuing a Master in International Relations at Leiden University.

Exercises de style – Reflections on Brexit

Luigi Lonardo

The goliardic vein of our editors, blended with the tedium vitae that assails at least one of them in this season in which the year dies most sweetly, has produced a couple of reflections on Brexit presented in the form of Exercises in Style – written, that is, alla maniera di Joseph de Maistre.

Joseph de Maistre, 1753-1821, was a Savoyard diplomat and politician, a sturdy anti-rationalist reactionary voice of the counter-enlightenment, who wrote against the French revolution and in favour of the Monarchy as divinely sanctioned form of government.

The following is a translation – with worryingly minor amendments – of the initial pages of de Maistre’s Considerations sur la France (1797)

Reflections sur le Royaume Uni

A short essay on Brexit in the style of de Maistre.

A miracle is an effect produced by a divine cause that suspends an ordinary cause. If, in the middle of the winter, a man orders a tree, in front of thousands of witnesses, to cover itself immediately with leaves and fruits, and the tree obeys, everyone would consider it a miracle, and look at it in awe, and bow in front of the performer. Well Brexit is as awesome, in the realm of politics, as the instantaneous fructification of a tree in the month of January: and yet people, instead of admiring it, look elsewhere, or make foolish commentaries.

Men, led by their pride, see disorder when they do not understand the cause of something, or when the causal chain they tried to create is suspended, or when things do not go as they expected them to. The truth is that they are necessarily limited, since they are mortal creatures, and equally limited is their action, especially at revolutionary times such as the ones we are living.

Uncertainty is the key word of the times. This word is very meaningful if it is meant as a reminder of the prime cause that creates such a spectacle; but it is stupid if it only expresses a sense of despise for out times or our politicians, or a sterile disenchantment.

‘How come – we read everywhere – that a country famous for her political leadership, her stable and much-admired parliamentary system, her seriousness and conscientiousness has taken such a decision! How can politicians, who appear to be the ineptest of their generation, be put in charge of guiding such a momentous change! An opportunistic mayor, a clever and deceitful political class, they hold the country in their hands! The European Union is swallowed by both government and opposition! Everything is possible for the evil ones!’

Look, never is certainty more visible, never Providence is more present, than when superior action substitute itself to that of men, and acts by herself. What is most striking about Brexit, is its sheer force that seems to destroy all obstacles. It is a hurricane that swifts away as light hay everything that human force has been able to oppose to it: nobody was able to stop it. The purity of the motivations has perhaps shown the obstacle: but that is all; and this zealous force, proceedings irresistibly toward its goal, has rejected Miller, a second referendum, etc.

One ought to say that Brexit leads men more than men lead Brexit. This is correct, and even though we could say the same about all great revolutions, it has never been truer than in this context. The fools who appear to lead Brexit only enter into it as instruments; as soon as they have the presumption to dominate it, the fall ignobly. Those who wanted to deliver Brexit did so without really wanting it and without knowing what they were doing.

Excessively mediocre men such as Nigel Farage have exercised, on a guilty nation, a despicable form of despotism: and surely, they were the first to be shocked by their own success. But they were drawn to this success, unwittingly, by circumstances. And Providence has thrown them away, and wanted to put Theresa May in charge instead. Their faith in Brexit, they who are men without political intelligence, has led them to dare anything, without fear of a Remain campaign. They have kept marching forward, without looking back. And so far everything has succeeded for them, because they are the instrument of a force that knows better.

The end of ‘Fortress Europe’? The implications of asymmetrical UK-EU intellectual property rights after Brexit

James Taylor

  1. Brexit and the future of IP rights

For some time, businesses have been awaiting clarifications about the future of the UK-EU relationship with regard to intellectual property rights. The Intellectual Property Office (IPO) has declared it will convert all EU registered trademarks into UK marks without charge to bridge the gap that will soon exist in law between UK and EU IP rights. As regards patents, it is clear that Brexit will not have a decisive effect,  since it appears they will be governed by a separate system and an independent court.[1] The most immediate question, and currently the most uncertain, concerns the ‘exhaustion’ of IP rights. If there were a deal along similar lines to the current Withdrawal Agreement signed in November 2018, equivalence of IP rights could be expected throughout the two-year transition period that such a deal would trigger. In preparation for the event of a no-deal, however, the UK Government has laid statutory instruments[2] before Parliament that state Britain’s intention to continue honouring the principle of regional IP right exhaustion within the European Economic Area (EEA) following Brexit.

Continue reading “The end of ‘Fortress Europe’? The implications of asymmetrical UK-EU intellectual property rights after Brexit”