From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Saturday, 24 September 2016

Latest thoughts about Brexit and the UPC

Sudden moments of clarity are always a good look for IPKat
It has certainly been a long time coming and we still can't be sure that a UPC change is gonna come to the UK. We recently saw the unveiling of an authoritative Opinion by Richard Godon QC and Tom Pascoe, to the effect that it is potentially legally possible for the UK to participate in the UPC following Brexit. This is notwithstanding the possible political difficulties surrounding it, and independently of membership of the EEA. In giving their Opinion, Counsel were instructed by, again among others, CIPA - who are lobbying for positive participation in the UPC after putting in so much work in advance of preparing the system. CIPA's impact paper of Brexit is available here 

As we gradually move towards some idea of how the UPC might work around Brexit, it is becoming clearer that a new agreement in some form or other would be a real sine qua non for future UK involvement in the UPC. The real value of the new Opinion, as this Kat sees it, is the thoughtful exploration of what this agreement would need to be and do, and how the UPC Agreement will need to be amended.

 After CJEU Opinion 1/09

Opinion 1/09 from the CJEU is generally cited as precluding non-EU Member States from involvement in the unitary patent. The problems would be in depriving the national courts of the task of interpreting and applying EU law (which of course the UPC Agreement proposes) and the power to make references to the CJEU. Counsel's view of this is that although the reasoning of the Opinion is somewhat opaque, it is possible to overcome the requirements it imposed on the then draft Agreement by implementing measures in a new agreement for the UK. The requirements identified are as follows:
  1. respect for the supremacy of EU law;
  2. the possibility of claiming damages and/or instituting infringement proceedings for breach of EU law;
  3. uniformity through the making of preliminary references. (see para 72 of Counsel's Opinion).
Their view is that it should be legally possible to implement measures safeguarding these EU constitutional principles. No domestic constitutional rules prevent the UK from: subjecting itself to a legal regime like the UPC which requires tribunals to apply EU law,  requiring courts within its territory to make references to the CJEU, accepting individual and collective responsibility for breaches of EU law, or submitting to the supremacy of EU law for patent disputes before the UPC. There is a very important condition that comes with this:
The UK would be required to accept the supremacy of EU law in its entirety as regards all such disputes as fall within the jurisdiction of the UPC. This would include, for example, competition law, fundamental rights arising under the Charter and general principles of EU law, as well as the specific patent rules contained, for example, in the Biotechnology Directive, as well as possible future EU legislation.   (para 76)
So, while it may be legally possible for the UK to overcome the requirements of Opinion 1/09 by a new agreement, it could still be very politically sticky to sell a treaty which proposes the ongoing supremacy of EU law over the UK - even within the relatively limited context of patent disputes before the UPC.

Amendments to the UPC Agreement

As Counsel's Opinion raises, Article 87 of the UPC Agreement - allowing for amendments to it - would not come into force until the Agreement itself does. That is, after the mandatory ratifications have taken place, including ratification by the UK. For this reason, unless UPC Agreement contracting states can be persuaded to unanimously agree amendments to the Agreement itself or a new Protocol could be drawn up, amendments by the UPC's Administrative Committee would have to wait until it comes into force. In light of this, it's safe to say that the amendments required can by no means be guaranteed.

With that caveat taken on board, the extent of the amendments to the UPC Agreement itself that were identified by Counsel are surprisingly brief and few:
  1. The terms relating to 'Contracting Member State' would have to become 'Contracting State' in Article 2(c).
  2. Rather than saying the UPC is subject to the same EU law as national courts, being a court common to Member States, it should be "subject to the same obligations under Union law as any national court of the Contracting a Member States" in Article 1.
  3. In Article 21, a reference to "any national court of a Member State" should replace "any national court".
  4. Similarly, Article 29 which deals with exhaustion should refer to the market in Contracting States instead of just "in the Union".
  5. Finally, various references to “Member States” elsewhere would need to be amended to include the UK (and potentially other non-Member States!?).
This leaves various questions of jurisdiction and enforcement to be dealt with. Counsel float the possibility of joining the Lugano Convention as a perfectly feasible replacement to the Brussels Regulation. 

What is not included in the Opinion's scope are the necessary amendments  for the ratify-and-leave option. Admittedly this scenario feels the most unlikely to this Kat, being quite a lot of effort for short term membership with a palpable expiry date, but it is worth noting that the UPC Agreement does not contain a clause for denunciation, whereas a previous incarnation did (which was gone by 2011). Because of this, Article 56 of the Vienna Convention on Treaties, restricting withdrawal from a treaty without a denunciation clause, could stop the UK embarking on this route before it even starts. An alternative would be to try and stick in some amendments going directly against the policy of removing the denunciation clause by reinstating it between the UK's ratification and foreseeable departure, or finding another justification for leaving - see here for more discussion of this.

Political problems?

Counsel's Opinion puts forward a practical, positive case for the nuts and bolts of UK participation in the UPC after Brexit. They are expressly neutral about the political palatable-ness of the proposals, which many readers of the Opinion may see as the elephant in the room. Dr Ingve Stjerna (whose thoughts on the UPC and Brexit can be found here) among others has pointed out that the continued commitment to Union law was a major bone of contention for the 52% of the electorate which voted to leave the EU, and thus participation in the UPC could be unacceptable to the population.

Dr Stjerna also points to Council Document 15856/11 as warning of the extreme difficulty of incorporating third countries into the UPC and is sceptical of more recent suggestions that the UK could be involved after Brexit as contrived to please UPC supporters. Still, it remains that the UPC is a non-EU international organisation with its own legal personality, expert Counsel have reviewed the legal feasibility and there is currently more than negligible political appetite for ratification.

An aside

One apparently insignificant footnote in the Opinion caught the IPKat’s eye.  Footnote 18 states “Although secondary legislation enacted under section 2(2) of the European Communities Act 1972 will lose its legal basis, and therefore its effect, upon the repeal of that Act.”  No further explanation is given of this assertion.  The IPKat has seen this suggested before, but has also seen suggestions to the contrary.  EU Directives are implemented in UK law either as primary legislation (Acts of Parliament), in which case it is universally agreed that unless amended or repealed such legislation remains in force, or by secondary legislation (Statutory Instruments [Orders in Council]) deriving legal basis from section 2(2) of the ECA. 

In the case of such Statutory Instruments, some commentators believe that they will survive the UK leaving the EU, either because the ECA will not in fact be repealed (and some authors believe that the repeal is not necessary upon the UK leaving the EU, the ECA simply ceases to have any EU legislation to bite on), or because repeal of the ECA does not invalidate SIs that were at the time lawfully enacted under Section 2(2) ECA.  The CIPA impact paper supposes that secondary legislation will remain in force for one or other of these reasons. But the real constitutional status of such secondary legislation seems to be unclear, and so the IPKat wonders whether any readers can provide reasoning or legal basis for whether or not an SI remains in force, once lawfully enacted, if the Act giving it legal basis is later repealed.

In concluion

This Kat is not much of a gambler. As with so many aspects of the progress of Brexit, this seems like something to wait and see for the time being. Is it worth quickly ratifying to get the court up and running before hashing all these details out? Probably it is not, and so the IPO line "there will be no immediate changes" is as good a line as any. Watch this space...


The Cat that Walks by Himself said...

In case Member States would have a chance to amend the UPC Agreement,
they might consider to do a two-tier patent reform:

(1a) In the first step to introduce the UPC for cases with a cross-border threshold, i.e. a value of the deal and/or at least three states involved. Without a Unitary Patent.

(1b) During this first step to revise the European Patent Convention, thereby introducing proper balance of powers, better account of the UPC Agreement in the EPC, and maybe somewhat different budget rules that would be stronger linked to Member States. There are also a number of substantive law issues that need attention in such a revision. For example, divisionals, self-collision, second medical use.

(2) Five years after the functioning the UPC, to start a Unitary Patent and EU-wide jurisdiction of the UPC.

The Cat that Walks by Himself said...

As a follow-up, recently, I've come to the conclusion that delegation of state powers in making generally binding decisions to International organisations requires a high level of powers balance, which is equivalent to those existing in the State for comparable powers or functions.

An International organisation empowered by a number of States to make generally binding decisions acquires a certain type of monopoly. While monopoly on a free market normally has to co-exist with other market entities, the protected-by-the-States International organisation becomes immune from the economic market environment. The moment such an organisation acquires financial independence, the power link with the States is particularly difficult to maintain. In fact, in practice, such link might be entirely lost in the absence of statutory balance of powers, that is, balance between legislative, administrative, and judicial power of the International organisation.

Therefore, an international organisation with a power to take generally binding decisions should have preferably both: statutory balance of powers and permanent effective financial dependence from contracting Member States.

The original post here:

Glad to be out of the madhouse said...

"In the case of such Statutory Instruments, some commentators believe that they will survive the UK leaving the EU, either because the ECA will not in fact be repealed (and some authors believe that the repeal is not necessary upon the UK leaving the EU, the ECA simply ceases to have any EU legislation to bite on), or because repeal of the ECA does not invalidate SIs that were at the time lawfully enacted under Section 2(2) ECA."

The fact that such a fundamental, basic question wasn't solved well before the referendum was called, never mind the vote itself, is a damning indictment of the British political class and system, never mind those voters who basically cast their votes for a black box.

Anyway, with the news of the Dutch ratification, and the progress of the ratification bill at the Italian Parliament, the repercussions of Brexit on the UPC are becoming increasingly irrelevant to everybody but the British themselves. It appears that the remaining member states are determined to go forward, with or without the UK, so that the missing British ratification may at most delay, rather than block the UPC. With everybody else determined to give the UK government as little leverage as possible in the upcoming negotiations, it's also a logical reaction. It's a pity, given the substantial British contribution to the preparation to the UPC, that the UK will probably never partake in it, but that's the only logical outcome of that vote.

Anonymous said...

Acc. the Advocate Generals opinion in C 146/13 (Kingdom of Spain v. European Parliament and Council of the European Union) it is an OBLIGATION of the UK to ratify the UPC-Agreement. The AG states:

" ...

179. I consider that, pursuant to the principle of sincere cooperation laid down in Article 4(3) TEU, the participating Member States must take all appropriate measures to implement enhanced cooperation, including ratification of the UPC Agreement, as such ratification is necessary for its implementation. Under that provision, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the European Union.

180. By refraining from ratifying the UPC Agreement, the participating Member States would infringe the principle of sincere cooperation in that they would be jeopardising the attainment of the Union’s harmonisation and uniform protection objectives. (60)

181. It was with this in mind that, in recital 25 in the preamble to the contested regulation, the EU legislature stated that it was ‘therefore of paramount importance that the participating Member States ratify the [UPC] Agreement in accordance with their national constitutional and parliamentary procedures and take the necessary steps for that Court to become operational as soon as possible’. (61)

182. The said recital 25 explains why, in Article 18(2) of the contested regulation, the EU legislature makes the applicability of the regulation conditional on the entry into force of the UPC Agreement if this occurs after 1 January 2014.


In other words: It will be a breach of contract by the UK not to ratify the UPC as soon as possible. If the UK dos not care about that this breach of contract entitles the remaining parties of the UPC to exclude the UK from this treaty acc. to Art. 60 of the Vienna Convention of the Law of Treaties. This will be a path to destroy any unlawful tactics to use the UPC as a kind of a bargaining tool. Whether such an exclusion is in line with intl. law that could be clarified in The Hague at the International Court of Justice in a proceedings that takes in average at the moment abt. 10 - 15 years and might be irrelevant from a pragmatic point of view.

Thus, all the Island Brexiteers and EU (& UPC) enemies should take that into account: There is a very strong political will on the continent to put the UPC into operarion as soon as possible. With or without the UK!

Meldrew said...

"It's a pity, given the substantial British contribution to the preparation to the UPC, that the UK will probably never partake in it, but that's the only logical outcome of that vote."

I don't know whether you have noticed, but logic appears to have little to do with politics: and so far, the fat lady has not sung.

Old observer said...

In spite of all what proponents of a quick ratification by the UK have possibly said, and their insistance for such a quick step, it appears that the problems with post Brexit UK participation are not of legal, but rather of political nature. This should not come as a surprise.

At least the authoritative document has the honesty to show were the political problems are.

Any quick ratification of the UPC by the UK will end up in a mess, and I do not know which honest representative could advise his client to go such an uncertain way.

The "authoritative document" about the Brexit is the first serious document about the matter, and is in clear contrast with statement of Mr Pors, Mr Hoying or Prof. Tilmann, to name a few, who were actually giving pro-dome pleas, according to which even the participation of non-EU member states would be possible. One could only shake one's head when reading such non-sense.

Whatever will be done, one thing is sure, the EUCJ will one day or the other put his finger in the pie, and any "arrangement" allowing participation of a non EU-member state, might be blown up in a quicker fashion than it needs to write it down.

On a more general note, all proponents of the UPC have claimed that the UP is good for European Industry and especially SMEs. This statement appears more a pretext then a tangible reality.

That Poland refused to ratify the UPC goes back well before the conservative nationalist presently in power have taken over the government. It was considered not favourable to Polish industry. Why something valid for a quite industrious country like Poland would not be applicable to smaller countries in Europe. Portugal had to ratify as the Arbitration court will be located there. Slovenia will, for the same reasons do the same. When will a country like the Czech ratify the UPC?

That at times even a litigation insurance for SMEs was foreseen, shows that there is a problem.

It might be good to look at this question before pushing the UPC through at any cost.

Anonymous said...

Anon 0616,
In which case, why all the fuss about the UK signing asap?? It appears that the UK's non-participation is the only topic of conversation. So, if you are correct, why does it matter? Obviously there are two answers:
a) you are wrong?
b) UK's non-participation could have a particularly deleterious effect?
Of course, the pro-UPC supporters may just be seeking an optimum system with the UK as a non-essential icing on the cake. Or....

Anonymous said...

Never mind, old observer, on the problems of other states. These will not be up to the UK. But, the contracting member states on the continent - as far as they ratify - will not wait for the ever braking UK as in the past. If UK does not want to participate on what reason ever they have to leave the UPC agreement forever and quickly , otherwise they will be excluded as soon as possible. Its up to the UK they have do decide on ,in or out', but not on ,sit and wait' while hindering the others. This will for sure not be accepted, anymore.

Proof of the pudding said...

Is anyone else left feeling very uncomfortable by the fact that the EPO appears to be lobbying strongly for the UK government to take prompt and decisive action in connection with the UPC agreement (ie to either ratify or withdraw)?

The EPO is a non-governmental, international organisation that was created by, and is controlled by, the EPC contracting states. The UK is one of those contracting states. In my view, it therefore beggars belief that the servant is telling one of its masters what to do.

I would have thought that the EPO really ought to be scrupulous in maintaining political neutrality. This is because being seen trying to exert influence over decisions made by a national government (and over which that government has sole authority) would surely raise questions about whether the EPO employees in question were acting beyond their remit. There would also be questions about whether such lobbying could be seen as undemocratic.

Perhaps BB is so used to obedience from the members of the AC that he has mixed up the identities of master and servant. However, if the lobbying efforts of the EPO come to the attention of Brexiteers within the UK government, I have no doubt that they will waste no time reminding him of the natural order of things.

The UK government has a difficult decision to take. As made clear by the Gordon and Pascoe opinion, participating in the UPC post-Brexit could have profound consequences (including signing up in perpetuity to the supremacy of EU law in a significant number of areas) that may well be unpalatable for many of those in government, let alone the electorate. Whilst I am certainly no Brexiteer, my firm belief is that the UK government should be left alone to mull over these consequences and to reach a decision in its own time. If the other contracting states to the UPC agreement cannot wait the time this will take, then so be it.

Meldrew said...

It appears to me that:-

Those who argue "wait and only ratify if the UK is guaranteed the court post-Brexit" are really saying "we don't like it, we never did like it, and this is a way of opposing it without seeming to be reactionary".

Those who argue "kick the UK out as soon as possible" are letting a sense of hurt (which may be justified), or political purity (which is not justified) override the pragmatic calculation of the value to Europe of having the UK part of the system.

Those who argue "ratify now, and sort out exit arrangements (if necessary) later" are recognising that this project was long fought for, but patience can snap, and it is better to be inside the system than out.

On pure pragmatism, ratification now makes sense. Whether pure pragmatism gets listened to in the UK these days is a different question,

Proof of the pudding said...


I could not disagree more. The "ratify now and sort out the mess later" approach presupposes that there will be a politically acceptable solution down the line that allows the UK to remain part of the UPC system. When you sit down and consider what compromises this will require on the part of the UK (and the large number of EU Regulations and Directives, as well as international agreements, that will require amendment) then you realise that it would be more than a little foolhardy to assume that everything will work out the way that the proponents of the UPC would like.

As has been argued by the IP Federation, the worst of all possible worlds would be ratification of the UPC by the UK, followed by the UK's withdrawal from the system. Indeed, which businesses could cope with the huge levels of uncertainty that such a sequence of events would generate?

So, to summarise, the "ratify now" approach that you propose involves either second-guessing a political outcome or setting up the worst possible outcome of all. Sorry to say, but I truly fail to see how "pure pragmatism" could lead one to follow that particular path. Are you sure that you are not letting the pre-referendum proximity to the finishing line affect your judgement?

Anonymous said...

The Elephant says....

This purely academic exercise is all well and good but a complete waste of time and money. There will be no political will to make this work because Brexit means Brexit. Don't you get it yet? Forget it and move on....

Rob said...

"The fact that such a fundamental, basic question wasn't solved well before the referendum was called, never mind the vote itself, is a damning indictment of the British political class and system, never mind those voters who basically cast their votes for a black box."

It really isn't. That's like saying a couple shouldn't agree to get divorced until after they've already worked out who will get custody of the car.

Glad to be out of the madhouse said...


"That's like saying a couple shouldn't agree to get divorced until after they've already worked out who will get custody of the car."

I'm sorry, but this is one of the worst analogies I've read in a long while.

First of all, the "couple" hasn't "agreed" to get divorced: unless I missed something, EU citizens elsewhere than in Britain (or indeed, many EU citizens in Britain, and British citizens abroad) weren't given a say.

A more correct analogy would thus be that of a nagging wife announcing to her long-suffering husband that she'll be filing for divorce, without having yet made her mind about:

a) when she'll file for divorce ;

b) whether she'll ask for custody of the children or rather get rid of them ; and

c) whether she'd still like to stay in the Single House or move out.

Now, after exactly three months, she still keeps procrastinating about all those questions, while blocking important household decisions like the kitchen renovation and insisting every day on what a great catch she is and how many suitors she has for the future (when in fact most of those alleged suitors are old flames who fled her after abusive relationships).

And, before anybody complains that this analogy is sexist, it works just as well if you switch the genders of the two spouses.

Anonymous said...

The discussion about Brexit and UPC continues to be maddening as not based on the possible (to avoid repeating myself I refer to my previous comments Thursday, 22 September 2016 at 15:56:00 BST )
If financial leviathans in the City are struggling to persuade the UK government to protect their financial passports post Brexit to preserve a status quo in London from which the UK benefits to the tune of tens of billions each year, what on earth makes any realistic observer believe the minnow of the patent community could persuade the UK government to move against the Brexit tide by ratifying the UPC pre-Brexit?
That would be true if the UPC was the best idea ever (which it isn’t), if there was a ground swell of support for it from UK industry and potential users (there isn’t), if it would encourage innovation in the UK or Europe (it won’t) or if the EPO was the most respected patent office in the world (it isn’t).
Indeed, regretfully, I must be even more blunt, the EPO’s continuing flogging of this UPC dead horse is yet more evidence (amongst many examples well known to all) that current EPO management continue to act against the long term interests of the patent community and industry in Europe. The present EPO President has zero credibility as his administration undermines the EPO on multiple levels with increasing irrationality. Reduction in patent quality, horrendous abuse of staff, attacking the independence of BoAs are but three examples and it is to the utter shame of the Administrative Council that he has survived so long.
Rather than focussing short term attention on the fate of the UPC, the most important and urgent action which would help improve the patent system in Europe is for the AC to remove Benoît Battistelli (and his team) from office without delay and bring back humane, credible and competent leadership to the EPO. Only then can a rational discussion of the challenges begin with all stakeholders, and users such as myself can have their confidence and faith in the EPO restored in a post Brexit world with or without the UPC. If not, reluctantly we will be gradually forced to file our patent applications outside the EPO in the interests of our clients and the EPO will begin a slow decline to irrelevance.

Old observer said...

I could not agree more with the blogger of 12.43 BST.

Ratifying now would be utterly counter-productive and only increase problems.
Sorry Meldrew, but ratifying now has nothing to do with pragmatism, but sheer panic to be left out of a system which could have been so lucrative. Actually, I was expecting better from Meldrew.

That the EPO still pushes for UK ratification is hard to understand. I would say there are more urgent problems to be solved at the EPO than fighting for UK ratification. Seeing the way the AC does not do its job of controlling the EPO and its president, one wonders about a hidden agenda.

How can it be that training for search and training for examination used to be three years for each job, now it is three years for both. Have the newcomers suddenly become more intelligent? Please allow me to doubt. Quality is thus lowering for a long time, but the lowering can only accelerate.

The problem lies with the EPO and its management. I leave here purposely aside any discussion about the ill treatment of staff representatives, but concentrate only on the horrendous production figures which are now required. Here it is not only BB who is to blame, but much more VP1, who has always thought that examination, and hence the grant of solid patents, is of secondary importance.

What matters are production figures. Who gives a damn about the patent quality, production figures have to be according the plan. Basta as would a former German chancellor say. The erosion of quality is nothing new, but when one sees what is coming out one can only shudder.

What good could be a UPC when faced with patent of little or no value.

A court be it called UPC or not, cannot do a good job on shaky patents! Why is it then so necessary to quickly ratify?

Anonymous said...

I agree with Meldrew that it is better to be in the system than out - but otherwise disagree. Ratifying now creates problems we do not currently have (and we have plenty as it is) - it could lead to the UPC and UP commencing when it is uncertain whether the UK can or will remain in the project. If it can't, but the UK has ratified in the meantime and the system commences, the situation for UPs covering the UK, the existence and locations of the UK local division and central division branch, the position of the UK judges and the enforceability of UPC judgments handed down pre Brexit are all unclear. None of these are sensible uncertainties to create in the hope that it will all be sorted out through some pragmatic political discussion. Nor do I believe the remaining EU member states will somehow reward the UK for being neighbourly in allowing the UPC to commence without delay, or punish us for not doing so - it is likely to be an irrelevance in the overall negotiations.

This doesn't even touch on whether ratification now of what is a treaty between EU member states (even if technically not an EU instrument), which requires recognising the supremacy of EU law (in general, not expressly limited to patent law), is politically possible. It is impossible in my view to reconcile ratification with the referendum vote (which went the wrong way, as far as I am concerned), at least until the Brexit terms are known and agreed (and are such that it is politically consistent to ratify).

I am a realist. And sadly, the pragmatic - and sensible - thing to do is simply not to ratify, then wrap the whole UP/UPC/UK discussion in with general Brexit negotiations. This of course means delay since it is difficult to see how the remaining member states can actually proceed without the UK while it remains an EU member state and a signatory to the UPC Agreement. If we end up out, then the UPC can go ahead without the UK at that point, if the momentum remains. If we are in, so much the better, though I see dragons and lions in the path there.

And for what it's worth, I am a supporter of the UPC/UP system even though I do not believe it to be quite as good or as "necessary for industry" as many have said it is.

Anonymous said...

In the seconds that the UK article 50 letter is received at Brussels, the remaining member States of the enhanced cooperation should amend the regulations to state that a Member State in the process of leaving UE can no longer participate to the Unitary patent, nor to the UPC, and that all references to such outgoing Member State are void in the regulations and the subsequent UPC agreement. By default, the London section of the court of First Instance of the UPC shall be deemed never to have been defined, and its intended operations shall be deemed to be part of operations allocated to the headquarters of the Central Division.
A similar clause already exist where a local or regional division would have to be dismantled due to lack of cases.
Amendments to the regulations with direct application to the Enhanced cooperation remaining Member States is by far the most efficient way to launch the system rapidly.

Anonymous said...

The task of undoing 40+ years of legislative ties is becoming bewilderingly apparent - the idea of tying another knot that will need to be untied seems not sensible, even if politically acceptable (the recognition of the Supremacy of Union law is fanciful). . When you've eaten to excess do not have even a wafer thin mint.

Anonymous said...

I see the analogies which have been made with families. Where the parents are about to file for divorce it is best not to plan another child - no matter how protracted and painful getting to a viable pregnancy has been. The mother is going to have to separate at some point in the next two years and the father - who has been a bit of a bully in the past and the cause of the separation - will get custody and the mother will have no say in how the child is to be raised.

Darren Smyth said...

To Anon at Sunday, 25 September 2016 at 06:16:00 BST

I see quite a few problems with your argument.

Firstly, the AG's Opinion is an opinion. Those comments were not reflected in the judgment of the CJEU and it is doubtful whether they are good law.

Secondly, even if there is an obligation to ratify the UPC Agreement, it can hardly mean that the UK is obliged to ratify when less than half of the other contracting member states have done so yet. If all of the others have, then we might be able to talk.

Thirdly, by that logic Poland is obliged to sign and ratify the UPC Agreement as well, but so far I have not seen anyone suggesting that.

And finally, the EU itself has already begun to treat the UK differently in view of the referendum result, such as depriving the UK of its presidency, so the principle of sincere cooperation, even if it applies in this situation, which I doubt, can hardly be assumed to apply with full rigour to the UK.

Best wishes


Having a headache from the construction noise said...

@Darren: "deprived the UK of its presidency"

Didn't the UK government itself give the upcoming presidency up, since they would then be sitting on both sides of the table, causing a sincere conflict of interest?

Anonymous said...

It has just become known that procedure according to Art 50 will be started fore the end of March 2017.

The European communities act of 1972 will be repelled and a Great Repeal Bill will be decided.

It becomes thus clear that the Brexit is on its way. Any ratification before this date has been transferred to dream world.....

Anybody claiming from now on that UK should ratify the UPC soon should have lost its illusions; it would better think how UPC could progress without UK.

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