The UK’s ambitious project of leaving the European Union is causing great uncertainty amongst businesses and the legal sector itself. Not only do lawyers have the challenge of preparing their clients for a (yet unknown) new post-Brexit regulatory framework, they also face potential restrictions to the extent of services they can provide.
Legal professionals currently benefit from the freedom of establishment and the freedom to provide services under the Treaty on the Functioning of the EU, which allows them to provide their services in any EU member state. This means that UK intellectual property lawyers can represent their clients before the EU Intellectual Property Office (EUIPO), claim EU legal professional privilege and represent clients before the Court of Justice of the European Union.
The registration of trade marks, designs and patents at the EUIPO is crucial for businesses who want to build and protect their brand within the entire EU. The EU Trade Marks (EUTM) system enables businesses to benefit from protection in all 28 member states on the basis of a single trade mark registration. In analogy, a Registered Community Design (RCD) provides businesses with a monopoly right over that design in the EU, and a European Patent is protected in all member states of the European Patent Convention.
The extent to which UK legal professionals can represent clients before the EUIPO post-Brexit depends on the UK’s future relationship with the EU and how quickly an agreement is sought.
Art 50(2) TEU gives the UK two years to negotiate “the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union”. Two years is a very short timeframe to negotiate and finalise the future arrangement of the movement of professionals, provision of services, and the scope of market access between the UK and the EU.
The completion of the phase 1 Brexit negotiations highlighted the complexities of the task, more than providing regulatory clarity. Judging from the EU’s draft Withdrawal Agreement published in April, it appears that the current legal framework is likely to be kept throughout the transitional period post-Brexit, and possibly for a further period thereafter until the finer details and long-term arrangements are finalised in separate agreements. This is good news for legal professionals who will likely continue to be able to provide services in the EU for the time being. However, these measures just buy us time whilst the can is kicked further down the road.
If the government fails to reach an agreement on preferential market access for legal services in the long run, UK lawyers would be restricted in providing legal services within the EU as they would be limited to the rights of foreign lawyers under the WTO rules and the General Agreement on Trade in Services (GATS). A Free Trade Agreement similar to the EU-Canada Comprehensive Economic and Trade Agreement (CETA) would incorporate provisions on legal services, but would not guarantee the same extent of rights as currently enjoyed.
DMH Stallard is prepared for all possible outcomes of the negotiations to ensure that we can continue to offer the same services to meet our clients’ needs. For example, we collaborate with legal professionals who are, and will continue to be, qualified to advise across all EU member states through our global network, Law Europe International.. Just as we are preparing for potential Brexit scenarios in the legal sector, it is also paramount that businesses check that their IP rights are protected in all relevant territories post-Brexit.
To contact Robert Ganpatsingh please email Robert.Ganpatsingh@dmhstallard.com
or call 01273 744213.