Guest Post – Even A No-Deal Brexit Will Not Erase Prior, Adverse CJEU Precedent

Author:Mr James Beck
Profession:Reed Smith
 
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Today, Reed Smith is hosting a client roundtable in London, "Identifying and Mitigating Risk in a Changing Global Economy," for life sciences clients. In light of that, we thought it would be a good idea to have a blogpost that's relevant to what's hot in the UK. Well, there's nothing hotter on that side of the Pond right now than the increasingly shambollixed up approach to Brexit. One thing we were wondering about, over here, is whether a crash out Brexit would at least get rid of, in the UK anyway, a couple of extremely unfavorable decisions from the European Court of Justice that we'd blogged about earlier. We didn't know, so we asked Simon Greer, a Reed Smith lawyer in our London office if he knew the answer. He did, and below is his response. As always our guest posters deserve all of the credit (and any blame) for their posts.

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The timing and implications of Brexit in the UK are currently one of life's great unknowns. The latest position is that Theresa May's latest proposed Brexit deal will be voted on by MPs in Parliament by 12 March 2019. However, the Prime Minister has also indicated that if her latest deal is rejected, MPs will be offered two separate votes shortly thereafter:

Whether or not MPs would support a 'no-deal' Brexit, meaning that the UK would only leave without a deal on 29 March 2019 if there was consent from the House of Commons for a 'no-deal' Brexit; and If the prospect of a 'no-deal' Brexit on 29 March 2019 is rejected by MPs, they will then be given a vote by 14 March 2019 as to whether the UK should request an extension to the 2 year Article 50 process, thereby delaying the UK's withdrawal to a date beyond 29 March 2019 (the length of such a delay is, as yet, unknown). In the pharmaceutical industry, the impact of a potential 'no-deal' Brexit on 29 March 2019 on the precedential value of the decisions of the Court of Justice of the European Union ("CJEU"), will be of significant interest. This is because the CJEU's recent decisions in the pharmaceutical sector have had a significant impact on the law in the UK, adverse to pharmaceutical companies, two examples of which we have discussed in previous blog posts:

Causation or No Causation, That Is the Question.

Bad News from Europe for Makers of Life-Saving Medical Devices

So, would a 'no-deal' Brexit effectively re-set the clock and eliminate the consequences of CJEU's decisions in the UK made prior to Brexit? The answer, unfortunately, is: no...

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