On March 29, 2017 United Kingdom has notified the intention to withdraw from the Union, according to Art. 50 of the Treaty on European Union (TEU).

The withdrawal cannot be followed by a revocation of the notification.

In other words the withdrawal notification cannot be followed by a withdrawal revocation because such a possibility is not provided in the TEU Art. 50.

The withdrawal notification will be followed by a withdrawal agreement between EU and the notifying state and Union Treats shall cease to apply from the date of entry into force of the withdrawal agreement.

According to the TEU Art. 50 the agreement shall be negotiated in accordance with Art. 218(3) of the Treaty on the Functioning of the European Union (TFEU).

In particular, the Commission shall submit recommendations to the Council in order to open negotiations with the withdrawing state.

However the withdrawal agreement may comprise transitional provisions in order to grant that EU obtain goals very important in the period required for completing the withdrawal agreement.

As regards Unitary Patent Protection (UPP) and Unified Patent Court Agreement (UPCA) it is apparent that United Kingdom cannot be part of Unitary Patent Protection and cannot ratify Unified Patent Court Agreement because, obviously, the withdrawal agreement will cease any Union Treats between EU and the withdrawing state, enhanced cooperation included.

Moreover, it is also clear that regulations 1257/2012 and 1260/2012, according to TFEU Art. 288, are legal acts of the EU that become binding and immediately enforceable as laws in all EU member states, in particular in all EU member states  participating to the enhanced cooperation.

Therefore, in my opinion, the Commission should recommend  the Council to formally review regulations 1257/2012 and 1260/2012 by considering cancelled therefrom United Kingdom as a Country participating to the Enhanced Cooperation in the field of Patent Protection.

Moreover, due to the fact that the Unified Patent Court Agreement (UPCA) is based on the Enhanced Cooperation as defined in the regulations 1257/2012 and 1260/2012, the Commission should recommend the Council to formally review UPCA by cancelling United Kingdom from UPCA.

In my opinion only such recommendations could help on obtaining the kick off of the Unitary Patent Protection and of the Unified Patent Court Agreement going beyond the present impasse.


Gian Giuseppe Masciopinto

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