What has happened?

The UK government has tabled amendments to the Retained EU Law (Revocation and Reform) Bill (REUL), which will see the sunset provision being dropped. Under the provision, nearly all retained EU legislation would have been automatically revoked after 31 December 2023, unless preserved. 

The sunset provision has been controversial with government departments under pressure to decide policy on a vast range of retained EU legislation by the end of the year and fears that legislation might be missed and unintentionally revoked. 

The provision has been replaced with a list of around 600 pieces of legislation (or provisions within legislation) that will be revoked at the end of 2023. 

What does this mean for brands?

The brands-related legislation being revoked is largely procedural and the matters covered are already dealt with nationally. The list includes the following (each of which is being revoked in its entirety):

• The Community Design (Fees) Regulations 2002. 

• Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs. 

• Commission Regulation (EC) No 2246/2002 of 16 December 2002 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) in respect of the registration of Community designs.

• Commission Regulation (EC) No 877/2007 of 24 July 2007 amending Regulation (EC) No 2246/2002 concerning the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) following the accession of the European Community to the Geneva Act of the Hague Agreement concerning the international registration of industrial designs. 

• Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights. 

What else?

The Bill retains its other provisions, including the extensive powers for ministers to revoke and reform retained EU law in future. It also provides that:

• After the end of 2023, domestic law will take precedence over assimilated law (but powers are included to allow supremacy of EU law in specified circumstances).

• Directly effective rights and obligations derived from EU Treaties and Directives and general principles of EU law will lapse after the end of 2023 (but powers are included allowing the preservation of their effect where expressly specified).

• The Court of Appeal and Supreme Court will have greater discretion to depart from retained EU case law and certain retained domestic case law with a new test for departure. In areas of conflict, there will be powers for UK and devolved law officers to refer or intervene in cases involving retained case law.

The latter, in particular, is likely to have an impact on IP laws, with increased scope for UK and EU case law to diverge.