In this blog post, Jack Williams of Monckton Chambers comments on a recent Court of Appeal case, Makeality Ltd v City Doggo Ltd [2025] EWCA Civ 400, which demonstrates the impact of the Retained EU Law (Revocation and Reform) Act 2023.
In the process of converting “retained EU law” into “assimilated law”, the Retained EU Law (Revocation and Reform) Act 2023 excluded and modified various features of the former category from the end of 2023. Consequently, many aspects of EU law and what was transposed into domestic law as retained EU law (for the period from IP completion to the end of 2023) cannot be relied upon in respect of facts and matters occurring from 1 January 2024. The case of Makeality v City Doggo demonstrates the impact of two of these exclusions.
The appellant appealed against a case management order that its trade mark infringement claim be transferred to the Intellectual Property and Enterprise Court (IPEC) small claims track. It did so, at least in part, on the basis that the small claims track cost regime did not comply with the direct effect of Article 14 of the IP Enforcement Directive (2004/48/EC) or, should that Article not have direct effect, that the relevant rules should be interpreted so far as possible in accordance with Article 14 of that Directive applying Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR I-4135.
The Court (Arnold LJ giving the lead judgment) rejected these submissions. Primarily, the Court held that Article 14 did not have horizontal direct effect and that the appellant’s interpretation could not be justified by the Marleasing principle. See [34]-[37]. Relevantly for present purposes, however, is the following additional conclusion at [38]:
“Even if I am wrong about that, the second and decisive obstacle to the Claimant’s argument is the Retained EU Law (Revocation and Reform) Act 2023 (“REULA”). Whatever may have been the position under the European Union (Withdrawal) Act 2018 [(“EUWA”)] as amended by the European Union (Withdrawal Agreement) Act 2020, section 2(1) of REULA repealed section 4 of the [EUWA] with effect from 31 December 2023; section 3(1) of REULA amended section 5 of the [EUWA] to insert (A1), which provides that “[t]he principle of the supremacy of EU law is not part of section domestic law” after 31 December 2023 “in relation to any enactment or rule of law (whenever passed or made)”; and section 4(2) amended section 5 of the [EUWA] to insert section (A4) which provides that “[n]o general principle of EU law is part of domestic law” after 31 December 2023. It follows that it is no longer open to the Claimant to advance an argument based either on Article 14 having direct effect or on the Marleasing principle.”
This is a helpful reminder that directly effective rights and obligations that formed part of retained EU law as at the end of 2023 by virtue of (the now repealed) section 4 of the EUWA are repealed for facts and matters occurring from 2024, and that the principle of supremacy of EU law (which continued to apply in respect of retained EU law) has similarly been abolished from that date. Accordingly, assimilated law does not take precedence over any other domestic law, and the principle of consistent interpretation found in Marleasing no longer applies.
Indeed, the priority rules established by the principle of supremacy have in fact not only been revoked but also have been reversed by section 5(A2) of the EUWA (inserted by the REULA). Assimilated direct legislation is thus now inferior to all other domestic law, including secondary legislation (subject, as usual in the byzantine maze of the Brexit legislation, to limited exceptions).
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