Significant development for the Retained EU Law (Revocation and Reform) Bill 2022-23: new list of affected legislation

We posted back in March on the controversial Retained EU Law (Revocation and Reform) Bill 2022-23 (the Bill) and its impact on IP - IP and the Retained EU Law (Revocation and Reform) Bill 2022-23. Since the Government introduced its so-called 'Brexit Freedoms Bill' in September 2022, it has been making its way through Parliament at a fair pace and has completed all the stages in the House of Commons and House of Lords and is now at the final stages (consideration of amendments and Royal Assent).

However, Secretary of State for Business and Trade, Kemi Badenoch, recently announced some significant amendments, which will be welcomed by critics of the Bill, but will come as a real kick in the teeth for the Brexiteers.  

Recap

This Bill has been causing a lot of controversy because it is an ambitious piece of post-Brexit legislation which aims to end the special status of retained EU Law (REUL) in the UK and automatically revoke (or 'sunset') restate, replace or update almost all REUL by a very tight deadline of 31 December 2023. Government departments have been working hard to identify all affected retained EU law and have listed approximately 5000 pieces of legislation in total on its 'Retained EU Law Dashboard'. Of those, 82 are IP-related (see here on the UKIPO website for the list).     

Amendments
 
There has been much criticism and pushback from the House of Lords regarding the extent of the project which is supposed to be completed in such a short space of time and the lack of scrutiny required under the Bill when making such important changes to the UK's legislative framework. Therefore, on 10 May 2023, Kemi Badenoch, announced significant amendments to the Bill.  She confirmed in a statement that the government would replace the initial list of around 5000 EU laws proposed for revocation, with a much shorter list of around 600 to be proposed for revocation by 31 December 2023. These proposals were then addressed at the House of Lords Report stage (mid-May).   

On 24 May 2023, the House of Commons debated the Lords' amendments to the Bill, rejecting some (such as requirements for additional parliamentary scrutiny) and accepting others (such as a new clause on REUL dashboard updates and requirements on reporting a specific list of REUL provisions intended for revocation or reform). The Commons' amendments have now been batted back to the House of Lords again for consideration and this is currently scheduled for 6 June 2023.

Which EU retained IP regulations are on the list to be revoked?

The UKIPO has updated its list by shading in grey the seven IP laws that will automatically be revoked on 31 December 2023, should the tabled amendments go through. These are:

1. Artist’s Resale Right (Amendment) Regulations 2009 (5/2009/2792).
2. Community Design (Fees) Regulations 2002 (5/ 2002/2942).
3. Council Decision of 22 December 1994 on the extension of the legal protection of topographies of semiconductor products to persons from a Member of the World Trade Organization {94/S24/EC).
4. Commission Regulation (EC) No 2245/2002 of 21 October 2002 implementing Council Regulation (EC) No 6/2002 on Community designs.
5. 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.
6. 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.
7. 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.

Comment

In terms of IP legislation, the IP industry in the UK can breathe a sigh of relief in the knowledge that there is no immediate cause for concern. The seven regulations earmarked for revocation in December 2023 are either no longer required (e.g. because provisions have been repealed or regulations have been superseded by subsequent regulations) or they are inoperable (e.g. because they relate to the practice and operation of EU institutions and not UK bodies) and as a result, there will be no significant impact on IP laws in the UK – for now. We can thank Kemi Badenoch for seeing sense just in time! However, in her statement, she also confirmed that the UK would 'still fully take back control of our laws' and 'also make our laws fit for UK purposes' so there could still be changes afoot, but at least there is no pressure to meet an unnecessarily tight deadline. The UKIPO may also now have more time to focus on other important initiatives such as the hotly debated topic of Artificial Intelligence and its impact on IP.     

We will of course be following the final stages of the Bill closely and will report back as and when we have significant news.