‘Inverted Supremacy’, ‘Weaker Precedent’ and other uncertainties brought about by the Retained EU Law (Revocation and Reform) Act 2023

Johnson, Phillip ORCID: https://orcid.org/0000-0001-7316-0732 2023. ‘Inverted Supremacy’, ‘Weaker Precedent’ and other uncertainties brought about by the Retained EU Law (Revocation and Reform) Act 2023. European Intellectual Property Review 45 (11) , pp. 634-645. 10.3316/agispt.20231019097367 Item availability restricted.

PDF - Accepted Post-Print Version Restricted to Repository staff only until 1 November 2024 due to copyright restrictions. Available under License Creative Commons Attribution Non-commercial. Download (442kB)

Abstract

The Retained EU Law (Revocation and Reform) Act 2023 fundamentally changes the nature of retained EU law. It removes the ‘frozen supremacy’ introduced by the European Union (Withdrawal) Act 2018 and in some cases entirely inverts it so that domestic law trumps retained direct EU law. Thereby creating a degree of uncertainty. But greater uncertainty still comes from its abolition of the strained interpretation of domestic law (under the Marleasing Principle) to ensure compliance with retained EU law. Coupled with these changes, the Act endeavours to make it easier for judges to depart from retained EU law. This discussion looks at these changes and the difficulties they may present to the law generally, and intellectual property laws in particular, and it presents ways in which these difficulties may be mitigated by the courts.

Item Type:	Article
Date Type:	Publication
Status:	Published
Schools:	Law Cardiff Law & Politics
Subjects:	K Law > KD England and Wales
Publisher:	Sweet and Maxwell
ISSN:	0142-0461
Date of First Compliant Deposit:	29 September 2023
Date of Acceptance:	August 2023
Last Modified:	19 Dec 2023 15:04
URI:	https://orca.cardiff.ac.uk/id/eprint/161450

Actions (repository staff only)

Edit Item