On 4 June 2018 the European Commission published a documenton the consequences of Brexit in the field of customs enforcement of intellectual property rights.

Customs enforcement of intellectual property rights (IPR) at the border is governed in the EU by Regulation (EU) No 608/2013. EU customs authorities may detain goods under their control which are suspected of infringing an IPR. The intervention of the customs authorities usually takes place upon prior request by the right holders, though customs also may detain those goods if no request has been made beforehand, in order to give right holders the opportunity to make such a request. The Regulation particularly covers goods in the following situations: (i) when declared for release for free circulation, export or re-export; (ii) when entering or leaving the customs territory of the Union; (iii) when placed under a suspensive procedure or in a free zone or free warehouse.

As from March 2019, Regulation (EU) No 608/2013 will no longer apply to the United Kingdom. In its document, the Commission has underlined that the main consequences will concern in particular the procedures for the submission of application and the effects of the decisions granting such applications.

The submission of applications is regulated in Section 1 of Chapter II of Regulation (EU) No 608/2013, according to which an applicant can submit to the competent customs department designated by the Member States a Union application, namely an application submitted in a Member State requesting the customs authorities of that Member State and the customs authorities of one or more other Member States to take action in their respective territories. A decision granting Union application takes effect not only in the Member State where the application was submitted, but also in all other Member States where action by the customs authorities is requested.

After Brexit, Union applications can no longer be submitted to the competent customs department of the United Kingdom. Union applications submitted in one of the remaining Member States will remain valid in the EU-27 as of the withdrawal date even if the customs authorities of the United Kingdom are amongst the customs authorities requested to take action. Where a Union application was submitted in a Member State, only requesting the customs authorities of that Member States and the customs authorities of the United Kingdom to take action, such application remains valid as a national application for the Member State in which it was submitted.

With regard to the decisions granting Union application, as of the withdrawal date the decisions adopted by the competent customs department of the United Kingdom as a Member State will be no longer valid in the EU-27. Decisions granting Union applications adopted in one of the remaining Member States will remain valid in the EU-27 as of the withdrawal date even if the customs authorities of the United Kingdom are amongst the customs authorities required to take action.

Davide Scavuzzo