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These Brexit highlights bring you a summary of the latest Brexit news and legislation updates from across a range of LexisNexis® practice areas, collated on 7 February 2020.
This section contains key overarching Brexit news headlines.
Reminder: This special exit day edition includes tips and analysis on the immediate considerations and priorities for lawyers, with links to essential Brexit guidance and further reading, including: Brexit Bulletin—key updates, research tips and resources.
See News Analysis: Brexit highlights—31 January 2020.
On 3 February 2020, the European Commission adopted draft negotiating directives, to be approved by the European Council ahead of talks on the future relationship between the UK and the EU. The draft mandate covers all areas outlined in the Political Declaration agreed between the UK and EU in October 2019 and proposes a single comprehensive partnership agreement, covering economic arrangements, security arrangements and overarching principles and governance (based on a level playing field and subject to separate agreement on fisheries). Meanwhile, the government issued a statement to Parliament, setting out high level red lines for talks on the future relationship. The UK proposals take a different approach, rejecting regulatory alignment and recommending a ‘suite of agreements’ on trade, fisheries, security and specific technical areas, accompanied by less formal cooperation in areas such as competition, data protection and public procurement.
See: LNB News 03/02/2020 86.
An EU-UK trade deal could skip lengthy national approval procedures to make sure goods and services continue to move freely between the two economies, according to plans sketched out by EU officials. But for this to work, parties must conclude talks by October 2020, making the timeline for an already-ambitious work program even tighter.
See News Analysis: Post-Brexit UK trade deal may skip national parliaments' approval, EU plans say.
The Court of Justice of the European Union has announced that as a result of the UK’s withdrawal from the EU, the number of judges of the Court of Justice and of the General Court has been reduced with immediate effect. However, the number of advocates general of the Court of Justice, fixed at 11 by the Council decision of 25 June 2013, will remain unchanged. As per the Withdrawal Agreement, the Court of Justice will continue to have jurisdiction in any proceedings brought by or against the UK until the end of the transition period.
See: LNB News 31/01/2020 94.
The UK has notified the Ministry of Foreign Affairs of the Kingdom of the Netherlands that as of 31 January 2020 it has withdrawn its Instrument of Accession, Note Verbale and Declarations for the Hague Convention on Choice of Court Agreements. The Withdrawal Agreement between the UK and the EU entered into force on 1 February 2020 and includes provisions for a period of transition, which will end of the 31 December 2020. During that time, Regulation (EU) 1215/2012, Brussels I (recast) will continue to apply between the EU and the UK for matters of jurisdiction and enforcement. The UK has further announced that it wishes to deposit a new instrument of accession at a time which will be deemed adequate, and which will take place before the period of transition expires.
See: LNB News 03/02/2020 30.
The Home Office has released documents for employers, local authorities and community groups on how best to support EU citizens who are applying to stay in the UK, as well as general information on the scheme. The documents, released on 31 January 2020, consist of promotional materials, draft letters notifying EU citizens of their rights and leaflets, all available in 25 European languages and Welsh.
See: LNB News 03/02/2020 31.
This section contains updates on the latest final and draft Brexit SIs laid in Parliament, plus updates on proposed negative Brexit SIs laid for sifting.
SI 2020/97: This enactment does not amend retained EU law but is made to bring into force the provisions of Schedule 4 and 5 to the Taxation (Cross-border Trade) Act 2018 not already in force. It came into force on 28 January 2020.
See: LNB News 03/02/2020 12.
SI 2020/104: This enactment is made in exercise of legislative powers under the Direct Payments to Farmers (Legislative Continuity) Act 2020 in preparation for Brexit. Provisions are made to address failures of retained EU law governing the Common Agricultural Policy Direct Payment Schemes to operate effectively, and deficiencies in that retained EU law in Wales. It came into force on exit day (EU(WA)A 2020, Sch 5 Pt 1, para 1(1) does not apply).
See: LNB News 05/02/2020 1.
SI 2020/108: This enactment is made in exercise of legislative powers under the European Communities Act 1972, Companies Act 2006, Limited Liability Partnerships Act 2000 in preparation for Brexit. This enactment amends the Companies Act 2006 and three pieces of UK audit regulatory regime legislation to continue the process of addressing failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU. It comes into force partly on 21 February 2020 and fully immediately before IP completion day.
See: LNB News 04/02/2020 32.
SI 2020/117: This enactment is made in exercise of legislative powers under the European Communities Act 1972. Provisions are made to make a series of necessary minor updates to UK law in order to ensure that the UK financial services framework remains fully effective and enforceable following the introduction of new EU legislation. This enactment is necessary to implement three EU regulations and one EU directive related to financial services. It comes into force on 29 February 2020.
See: LNB News 05/02/2020 32.
SI 2020/99: This enactment is made in exercise of legislative powers under the Taxation (Cross-border Trade) Act 2018 in preparation for Brexit. This enactment amends three UK secondary legislation in relation to trade remedies system. It comes into force on 1 March 2020.
See: LNB News 03/02/2020 46.
This section contains key Brexit news hand-picked by Lexis®PSL lawyers from their own practice areas.
EU sanctions continue to apply in the UK until 31 December 2020
The government has published guidance on the UK sanctions regime under the Sanctions and Anti-Money Laundering Act 2018. This guidance confirms that EU sanctions will continue to apply in the UK until 11 pm on 31 December 2020.
See: LNB News 03/02/2020 44.
FCA publishes post-Brexit update to EMIR webpage
The FCA has updated its webpage on the European Market Infrastructure Regulation (EU) 648/2012 (EMIR) to reflect the fact that the UK has now left the EU and entered an implementation period.
See: LNB News 04/02/2020 53.
FCA sets out issues for firms to consider during Brexit transitional period
The FCA has also updated a webpage on Brexit which sets out issues for UK firms to consider during and after the transition period, which ends on 31 December 2020.
See: LNB News 03/02/2020 83.
For further updates from Banking and Finance, see: Banking and Finance weekly highlights—overview.
Prime Minister hopes for friendly cooperation between EU and UK
Prime Minister Boris Johnson has published a statement setting out the government’s proposed approach to negotiations with the EU. Aiming for the relationship between the UK and the EU to be one of ‘sovereign equals’, the Prime Minister emphasises the need for a free trade agreement and agreements on, among others, fisheries, internal security, aviation and civil nuclear cooperation. In addition, he calls for independent policies on immigration, environment and data protection.
See: LNB News 04/02/2020 70.
For further updates from Commercial, see: Commercial weekly highlights—overview.
Companies House publish new Brexit guidance on company registrations and forms
The government has published two new Brexit guidance notes for businesses and stakeholders. The first relates to the impact of Brexit on company registrations and the second lists the proposed changes to Companies House forms. The guidance relates to changes that would take effect at the end of the implementation period, due to be 31 December 2020 (unless extended). From that date, European public limited companies, known as ‘Societas Europaea’ (SEs) and European Economic Interest Groupings (EEIGs) will no longer be able to be registered and those that have not made alternative arrangements will be automatically converted to a ‘UK Societas’ and ‘UK Economic Interest Grouping’ respectively. The changes to Companies House forms proposed mostly relate to forms for SEs and EEIGs, but there are also related amendments to common forms such as IN01 (company incorporation), AP02 (corporate director appointment), CH02 (change of corporate director details) and CG04 (change of corporate director details). These updates relate to the additional details for corporate officers that will be required (UK companies and LLPs with EEA corporate officers will have to provide the corporate officer’s name, registered office address, legal form and governing law and register, and registration number).
See: LNB News 31/01/2020 84.
For further updates from Corporate, see: Corporate weekly highlights—overview.
Brexit and extradition—is the picture finally clear?
How confident can we be about the shape of the UK’s extradition arrangement with the EU27 Member States post Brexit? Abigail Bright, barrister at Doughty Street Chambers discusses the current uncertainty, the UK government’s key area of focus when moving into transition and the likely impact of Brexit in this area.
See News Analysis: Brexit and extradition—is the picture finally clear?
For further updates from Corporate Crime, see: Corporate Crime weekly highlights—overview.
Consultation launched on the new Agriculture Bill
The Agriculture Bill passed its Second Reading in the House of Commons on 3 February 2020. The Public Bill Committee has invited those with relevant expertise and experience or a special interest in the Agriculture Bill, to submit their thoughts on it. The Bill incorporates all the essential provisions of the previous Agricultural Bill 2017–2019 while adding several measures. There is notably a requirement for Ministers to consider the sustainability of the environment when encouraging the production of food in England. It also includes a requirement to report on food security every five years. The closing date for submission is 10 March 2020.
See: LNB News 04/02/2020 63.
Organisation discusses some of the changes in the new Environment Bill
The Chartered Institute of Water and Environmental Management (CIWEM) has released a discussion of the new Environment Bill, which mentions changes to the new version of the Bill, among other things. These changes include new powers in the Bill to restrict or ban the exporting plastic waste to developing countries and a requirement for the Secretary of State to set long-term targets for the priority areas of air quality, water, biodiversity, resource efficiency and waste reduction. As well as changes, CIWEM also discusses the Office for Environmental Protection, loopholes and the legally-binding nature of long-term environmental targets. The Environment Bill was introduced in Parliament on 30 January 2020. Its aim is to set in place the legal framework for environmental protection following Brexit.
See: LNB News 31/01/2020 35.
Farm payments to remain unchanged during transition period
Defra has confirmed that Direct Payments will continue for 2020. Existing Rural Development Programme projects, and those approved by 31 December 2020, will receive funding from the UK government until the projects end. Current rules and processes will remain the same until Defra and the devolved administrations introduce new schemes and policies.
See: LNB News 31/01/2020 24.
For further updates from Environment, see: Environment weekly highlights—overview.
ECB publishes Agreement and Decisions made as a result of Brexit
An agreement between the European Central Bank (ECB) and the national central banks of the Member States outside the euro area amending the agreement of 16 March 2006 laying down the operating procedures for an exchange rate mechanism in stage three of Economic and Monetary Union, as well as six decisions made as a result of the Bank of England (BoE) ceasing to be a national central bank of a Member State, were published in the Official Journal of the EU.
See: LNB News 04/02/2020 75.
ESMA statement on governance and reporting obligations for UK entities on Brexit
The European Securities and Markets Authority (ESMA) published a statement clarifying issues relating to its governance and the reporting obligations for UK entities from 1 February 2020 following Brexit.
See: LNB News 31/01/2020 38.
SRB issues statement on the effect of Brexit for EU resolution planning
The Single Resolution Board (SRB) issued a statement on the effect of Brexit for EU resolution planning. The SRB notes that, during the transition period, MREL-eligible liabilities governed by UK law are treated as if they were governed by Member State law. After that, they will be treated as third country liabilities and may need additional clauses.
See: LNB News 03/02/2020 51.
FCA publishes Handbook Notice No. 73
The Financial Conduct Authority (FCA) published Handbook Notice No. 73, which provides information on the impact of the Withdrawal Agreement and European Union Withdrawal Instruments, and the changes to the FCA Handbook made by the FCA board on 12 December 2019, 10 January 2020 and 30 January 2020. Feedback on the relevant consultation papers (CPs) is set out in Chapter 3 of the Handbook Notice or in separate policy statements.
See: LNB News 31/01/2020 83.
FCA publishes post-Brexit updates to credit rating agencies webpage
The FCA published an updated version of its webpage for credit rating agencies (CRAs) to reflect the fact that the UK has left the EU and entered an implementation period, which is due to operate until 31 December 2020.
See: LNB News 04/02/2020 54.
TheCityUK publishes response to PM’s outline of UK-EU future relationship objectives
TheCityUK responded to a speech by prime minister Boris Johnson, in which he outlined the UK’s objectives in negotiating its future relationship with the EU. The CEO of TheCityUK, Miles Celic, said that whatever the ultimate future UK-EU relationship is, ‘it must be built on transparency and constructive regulatory and supervisory co-operation’.
See: LNB News 04/02/2020 35.
OFSI publishes financial sanctions guidance
The Office of Financial Sanctions Implementation (OFSI) published guidance on financial sanctions, which includes a summary of financial sanctions during the Brexit transition period.
See: LNB News 31/01/2020 86.
Comment—clock is ticking for UK financial services over replacing ‘in-flight’ EU laws
UK financial players are nervously awaiting movement from policymakers on key pieces of forthcoming EU legislation that did not find their way into the UK statute book before Brexit, as trade negotiations kicked off between Westminster and Brussels on 3 February 2020. Banks and lawyers have warned that there is limited time for UK lawmakers to write and pass their own versions of financial legislation before they are needed when the Brexit implementation period ends on 31 December 2020.
See News Analysis: Comment—clock is ticking for UK financial services over replacing ‘in-flight’ EU laws.
Equivalence for financial services is a long shot, academics tell UK lawmakers
The UK financial-services sector may not be able to get the equivalence decision needed to access the EU market, two respected university academics told lawmakers in London on 29 January 2020, adding their voices to post-Brexit concerns for the industry. They said they were doubtful that EU-UK market access decisions would be granted on an outcomes-based approach, predicting that the highly politicised process would see the European Commission demand that the UK maintain aligned rules.
See News Analysis: Equivalence for financial services is a long shot, academics tell UK lawmakers.
Interim chief poised to see FCA through Brexit transition
As the government searches for a successor to lead the FCA, industry insiders say it is likely that the interim replacement will get the top job permanently this year as the agency seeks to emerge from a series of regulatory bungles while facing the challenges of Brexit.
See News Analysis: Interim chief poised to see FCA through Brexit transition.
For further updates from Financial Services, see: Financial Services weekly highlights—overview.
Information released on IP rights during transition period
The Intellectual Property Office (IPO) has released information on how IP rights will be affected during the transition period, following the UK’s exit from the EU on 31 January 2020. The IPO has stated that the IP system will continue as is until 31 December 2020, after which nearly all 1.4 million EU trade marks (EUTMs) and 700,000 EU designs will be converted to comparable UK rights, effective 1 January 2021. This arrangement provides certainty to industries and ensures appropriate management of UK IP rights domestically after the transition period ends.
See: LNB News 30/01/2020 24.
IPO updates guidance on copyright and related rights in light of transition period
The IPO has said that, after Brexit, harmonised copyright provisions across the EU will result in references that are no longer appropriate and the breakdown of several cross-border mechanisms and arrangements. On 21 March 2019, the government introduced the Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2019, SI 2019/605, to amend inappropriate references in the Copyright, Designs and Patents Act 1988 (CDPA 1988), such as references to ‘another EEA state’ and to resolve cross-border mechanisms and arrangements so that the UK does not give unreciprocated effect to certain mechanisms. On 30 January 2020, the government has issued guidance covering a number of changes under the regulations. The new guidance is similar to previous guidance, but refers to the ‘transition period’ rather than Brexit.
See: LNB News 30/01/2020 105.
IPO updates guidance on trade marks, designs, patents and SPCs after transition period
The IPO has published a series of updated Brexit guidance documents to prepare businesses for changes to unregistered Community designs, international designs and trade mark protection, supplementary protection certificate and patent law and EUTM protection, which will come into effect at the end of the transition period on 1 January 2021.
See: LNB News 30/01/2020 112.
UK citizens able to hold and register .eu domain names during transition period
The European Registry for Internet Domains (EURid) has released a Brexit notice to inform UK citizens that, during the transition period, they will continue to be able to hold and register .eu domain names. In addition, EURid notes that its previously outlined plan for the UK’s exit will still apply as from the end of the transition period.
See: LNB News 31/01/2020 37.
Continued protection for Hague and Madrid System users during transition
The World Intellectual Property Organisation has released two Information Notices for users of the Hague and Madrid Systems. International trade marks and designs designating the EU will continue to be protected in the UK until the end of the transition period on 31 December 2020.
See: LNB News 31/01/2020 29.
For further updates from IP, see: IP weekly highlights—overview.
Post-Brexit transition period will not affect supply and safety of medicines
The European Medicines Agency (EMA) has updated its Q&A document on the prevention of medicine shortages as a result of Brexit following the UK’s withdrawal from the EU. The Q&A document, which applies to human and veterinary medicines, addresses questions such as what the EU and EEA are doing to avoid shortages, whether there is a risk to the supply of medicines during the implementation period, what medicines are at risk of being in short supply and whether the safety of medicines will be compromised as a result of Brexit.
See: LNB News 04/02/2020 28.
Grace period offered for manufactures dealing with withdrawn notified bodies
The Medicines and Healthcare products Regulatory Agency (MHRA) has offered a grace period to manufacturers if they deal with the withdrawal of a Notified Body. The offer is contingent on various conditions being met including regular updates being given to the MHRA and the status of CE certification.
See: LNB News 30/01/2020 99.
UK entities to continue to participate in EU-funded programmes
The Department for International Development (DFID) has announced that the UK will continue to take part in programmes funded under the existing 2014–2010 Multiannual Financial Framework (MFF) until their conclusion. Most of the programmes will therefore continue to benefit from EU funding, with some likely receive funding past 2020 and the end of the period of transition. DFID has also said that UK entities can continue to bid for funding under the existing MFF programme, meaning that the financial assurance implemented to safeguard funds in a no-deal scenario is no longer necessary.
See: LNB News 03/02/2020 82.
EU pharmaceutical laws will apply in the UK until end of 2020
The EMA has published a press release confirming that EU pharmaceutical laws, as set out in the ‘Acquis Communautaire’, will continue to apply during the implementation period. The EMA emphasises that, in order to remain on the EU market post-31 December 2020, pharmaceutical companies must ensure their authorised medicines comply with EU laws. Marketing authorisation holders and applicants can still be established in the UK. In addition, qualified persons for pharmacovigilance, pharmacovigilance system master files and quality control sites can be based in the UK until the end of 2020.
See: LNB News 04/02/2020 15.
UK to adhere to current EU standards for blood collection
The Department of Health and Social Care has released guidance relating to the trade of blood products between the UK, EU and EEA EFTA states. The department also provides certainty in the guidance as to quality and safety standards post-transition period, confirming that the UK will continue to adhere to the current standards for blood collection, testing, processing, storage and distribution.
See: LNB News 03/02/2020 76.
For further updates from Life Sciences, see: Life Sciences weekly highlights—overview.
Government provides study abroad guidance for university students
The Department for Education (DfE) has published guidance relating to the actions university students in the UK must take if they intend to study abroad. In its guidance, the DfE provides information on rules for living relevant to the various countries in which UK students can study, as well as advice on residency and health and benefits. It also outlines the availability of student finance and the criteria for applying. Finally, the DfE cites Erasmus+, as the EU’s funding programme for education, youth, training and sport, and explains how students can apply for a placement under the scheme.
See: LNB News 03/02/2020 21.
Department for Education’s guidance outlines rights of EU students in the UK
The Department for Education (DfE) has published guidance for EU students studying in the UK, which explains that the rights of EU citizens to live in the UK will not change until 31 December 2020 and that they can apply to the EU Settlement Scheme until 30 June 2021. This guidance also extends to students from Iceland, Liechtenstein, Norway and Switzerland.
See: LNB News 03/02/2020 18.
For further updates from Local Government, see: Local Government weekly highlights—overview.
Composition of the European Parliament changes post-Brexit
The European Parliament confirmed changes to its composition will change from 1 February 2020, following the UK's withdrawal. The Parliament will be composed of 705 seats, down from 751. Of the UK’s 73 seats, 27 will be reallocated to remaining Member States, leading to an increase in representation for a few states in line with new relative population sizes. The remaining 46 seats will be reserved for future EU states. The composition of committees and subcommittees will also change in line with the Rules of Procedure.
See: LNB News 31/01/2020 76.
With the exit door unlocked, the nature of EU membership is transformed
As the UK walks out of the EU, it will be guided by its 540-page Withdrawal Agreement. This is in essence an exit manual that means any other country leaving the bloc won’t have to take a leap in the dark, but follow a meticulously defined procedure. That presents risks, but it may yet improve the long-term health of the European project.
See News Analysis: With the exit door unlocked, the nature of EU membership is transformed.
For further updates from Public Law, see: Public Law weekly highlights—overview.
Software export controls between the EU and the UK—the impact of Brexit
What will the impact of the UK’s exit from the EU be on the export controls applicable to ‘dual-use’ software? Roger Bickerstaff, partner in the Technology & Communications team at Bird & Bird, explains.
See News Analysis: Software export controls between the EU and the UK—the impact of Brexit.
For further updates from TMT, see: TMT weekly highlights—overview.
For further updates, this section contains quick links to popular trackers and practical guidance content on Brexit:
● Brexit timeline—this Practice Note contains a timeline of key events and milestones in the Brexit process, as of the date that the UK triggered Article 50 TEU
● Brexit legislation tracker—this Practice Note tracks the progress of UK legislation introduced in connection with Brexit. It includes a Brexit SI database collating details of draft and enacted Brexit SIs, as well as draft Brexit SIs laid for sifting
● Brexit toolkit—for ease of reference, this toolkit collates practical guidance on the specific legal and practical implications of Brexit across a range of practice areas. The Brexit toolkit brings all of the core content together for ease of reference and also provides essential background information, trackers and analysis on the process of withdrawing from the EU and negotiating new trade relationships with the EU and third countries
LexTalk® is an online community forum which gives Lexis®PSL subscribers the opportunity to post questions, hold conversations, participate in discussions and share best practice. It has been designed to provide a secure place for legal professionals to discuss legal developments, offer and receive peer support, and gain a sense of up to date market practice and advances in real-time. You can access and post questions on all of the dedicated practice area forums, including a dedicated forum for Brexit-related discussion, for users to discuss queries and sense check issues and solutions as they arise day-to-day.
Click here to sign up and meet like-minded community members, create a profile, connect, share, and start participating today! Alternatively, you can access LexTalk® on the key resources tab on your Practice Area home page.
Here is a sample of recent Brexit journal articles available subject to subscription:
● Royal rumblings in Downing Street: In this article, Jon Robins investigates what is happening with Boris Johnson’s royal commission. See New Law Journal: 170 NLJ 7873, p7
● Employment law brief: In this article, Ian Smith says there's life after Brexit for unfair dismissal claims. See New Law Journal: 170 NLJ 7873, p11
● Analysis—The UK DAC 6 regulations: the good, the bad and the unknown: In this article, Brin Rajathurai estimates that whilst the final UK DAC 6 regulations provide some of the answers, there are still significant areas of uncertainty, including its future post-Brexit. See: Tax Journal, Issue 1474, 12
● Changes to residence and non-dom laws in Greece: In this article, Michael Anderson, Joseph Hage Aaronson and Styliani Ntoukaki report on the new Greek non-domicile legislation triggered by Brexit timeline. See: Tax Journal, Issue 1474, 16
● Family fortunes: In this article, David Burrows identifies some familiar hot topics ripe for reform in 2020, including clarity of law, legal aid and secrecy, all immobilised by the Brexit logjam. See New Law Journal: 170 NLJ 7873, p17
Please feel free to contact the Lexis®PSL team with your comments, queries or suggestions: Contact us.
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