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Risk & Compliance
Info law and TMT
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The European Data Protection Board (EDPB) plans to present its opinion on
proposed data adequacy decisions for the UK in mid-April 2021. See News Analysis: UK data adequacy decisions due to receive EDPB opinion in mid-April.
The UK is on the hunt for a new Information Commissioner who is up to the task
of rewriting the country’s data protection laws to
be more flexible and business-friendly after Brexit. See News Analysis: UK seeks new Information Commissioner with focus on post-Brexit overhaul of data protection rules.
Financial crime prevention
European Banking Authority (EBA) has published final revised guidelines on money
laundering and terrorist financing risk factors. The revisions take into
account changes to the EU anti-money laundering and counter-terrorism financing
legal framework and address new risks, including those identified by the EBA’s implementation reviews.
In addition to strengthening financial institutions’ risk-based approaches to
AML/CTF, the revisions support the development of more effective and consistent
supervisory approaches where evidence suggests that divergent approaches
continue to exist. See: LNB News 01/03/2021 84.
Financial Action Task Force (FATF) has opened a consultation on its proposed
guidance on proliferation financing risk assessment and mitigation. The
guidance is being developed to help both the public and private sectors implement
new requirements ‘to identify, assess,
understand and mitigate proliferation financing risk as defined in
Recommendation 1 and its Interpretive Note. The guidance seeks to assist both
sectors in conducting a risk assessment in the context of proliferation
financing, and applying corresponding risk mitigation measures.’ The FATF welcomes views on
the content of the guidance, especially on the areas of focus it outlines. FATF
is particularly interested in responses from financial institutions and designated
non-financial businesses and professions. The deadline for responding is 9
April 2021. See: LNB News 02/03/2021 85.
has published comments from the G20 Finance Ministers and Central Bank
Governors Meeting on 26 February 2021. FATF President, Dr Marcus Pleyer
commended the Italian Presidency’s focus on digitalisation
in financial services and said the FATF will ‘contribute to the Italian
Presidency’s priority on financial inclusion’. The FATF will also
continue working on its guidance on digital ID, will launch a review of the
global implementation of standards on virtual assets and stablecoins, and will
analyse the opportunities and challenges of digital transformation for
anti-money laundering. Dr Pleyer added that ‘The FATF stands ready to
support the G20 through work on environmental and climate crime, such as
illegal deforestation and illegal wildlife trade’. See: LNB News 01/03/2021 83.
companies should take a pragmatic approach to US Foreign Corrupt Practices Act
(FCPA) compliance by being aware of key risk areas (such as inappropriate
gift-giving, liability for third-party actions, and countries with recurring
corruption issues) and implementing custom-designed procedures that evolve with
their operations, says Howard Weissman at Miller Canfield. See News Analysis: Mitigate key US FCPA risks
with tailor-made compliance.
Additional Risk & Compliance updates this week
Society has recommended that providers of training contracts pay trainees a
minimum of £22,794 in London and £20,217 outside London from 1 May 2021. The
increase has been calculated using the Consumer Price Index 12-month rolling
inflation rate. There is no regulatory requirement to pay this recommended
minimum salary, but the Law Society believes paying trainees at least this sum
represents good practice. See: LNB News 26/02/2021 100.
Spring Budget 2021, on 3 March 2021, the Chancellor of the Exchequer, the Rt
Hon Rishi Sunak MP, announced a series of measures to aid business recovery
following the coronavirus (COVID-19) pandemic and associated lockdowns.
Measures include a rise in corporation tax, the introduction of loan schemes
and grants, tax reductions for businesses and a new freeports policy. Harriet
Brown, barrister at 15 Old Square Tax Chambers, Maudie Leach, senior solicitor
at Macfarlanes, Zoe Feller, partner at Bird & Bird and Adam Cygan,
professor at the University of Leicester, comment on the measures announced and
the impact on businesses. See: LNB News 03/03/2021 113.
government has published new guidance for businesses that trade over £250,000
worth of goods with the EU annually, new guidance for businesses and holders of
international EU protected designs, new promotional material for stakeholders,
and updated guidance on taxes and tariffs for EU Businesses. See: LNB News 25/02/2021 87, LNB News 25/02/2021 35, LNB News 01/03/2021 11 and LNB News 02/03/2021 104.
Court considered one of many topical insurance issues left unresolved by the
recent Supreme Court ‘test case’ on business interruption
insurance (The Financial Conduct Authority v Arch Insurance (UK) Ltd & Others  UKSC 1), namely whether there was
cover for losses arising from the coronavirus pandemic under a policy with a ‘closed list’ disease clause. The policy
in question provided cover against the outbreak of a range of infectious
diseases, including ‘Plague’ but not coronavirus. The
policyholder argued that the word ‘Plague’ should be read as a
general term for an infectious disease with a high mortality rate, epidemic or
pandemic, such that loss caused by coronavirus would be covered. The court
rejected this interpretation and held that the word ‘Plague’ was intended to refer to
the specific disease caused by the bacterium Yersinia pestis. The clause
therefore did not cover loss caused by coronavirus and the policyholder’s claim was struck out.
Written by Martyn Naylor, barrister at 4 Pump Court Chambers. Martyn was
instructed as junior counsel in the Supreme Court ‘test case’ and recently obtained
summary judgment for an insurer in a ‘closed list’ disease clause case
similar to the present. See News Analysis: COVID-19 and business
interruption insurance—cover for ‘Plague’ (Rockliffe Hall v
the Supreme Court decision of the Financial Conduct Authority’s (FCA) test case
concerning non-damage business interruption (BI) insurance claims, and the
FCA's consultation for the same, the FCA has published Final Guidance: Business
interruption insurance test case—proving the presence of
coronavirus. The guidance will run from 3 March 2021–31 January 2022, by which
time the FCA expects that all issues relating to proving the presence of
coronavirus will have been resolved. See: LNB News 03/03/2021 93.
European Commission has launched a consultation on how to improve working
conditions for people working through digital labour platforms. It has been
acknowledged that although platform work can ‘offer increased flexibility,
job opportunities and additional revenue, including for people who might find
it more difficult to enter the traditional labour market’, certain types of platform
work are linked with precarious working conditions, ‘reflected in the lack of
transparency and predictability of contractual arrangements, health and safety
challenges, and insufficient access to social protection’. In the first stage of its
consultation the Commission seeks to gather the views of European social
partners on the need and direction of possible EU action to improve the working
conditions in platform work. The consultation will be open for a minimum of six
weeks. See: LNB News 26/02/2021 5.
Equity capital markets
Treasury has published the report of the review of the UK listing regime
chaired by Lord Hill. Aimed at encouraging more growth companies (such as in
the life sciences and tech sectors) to list in the UK, the detailed set of
recommendations are primarily focused on changes to the Listing Rules. A fundamental
review of the prospectus regime is also proposed. The Financial Conduct
Authority (FCA) aims to publish a consultation paper on Listing Rules changes
by the summer and make relevant rule changes by late 2021. See: LNB News 03/03/2021 101.
Spring Budget, on 3 March 2021, the Chancellor of the Exchequer, the Rt Hon
Rishi Sunak MP, announced measures including the increase in the maximum rate
of corporation tax to 25% from 2023, the launch of the Recovery Loan Scheme and
new schemes to boost small and medium-sized enterprises (SMEs). Maudie
Leach, senior solicitor at Macfarlanes, Ben Jones, partner at Eversheds
Sutherland, Zoe Feller, partner at Bird & Bird and Deepesh Upadhyay,
principal associate at Eversheds Sutherland, comment on the measures announced
and the impact on corporate law. See: LNB News 03/03/2021 118.
House has announced it will recommence its
compulsory and voluntary strike off process from 8 March 2021. The process had
been temporarily halted on 21 January 2021 to ensure that companies were not
negatively impacted by any delays caused by having a reduced workforce in the
office due to the impact of the coronavirus pandemic. See: LNB News 26/02/2021 66.
European Commission has published updated guidance for stakeholders
on the withdrawal of the UK from the EU and EU rules on company law. See: LNB News 25/02/2021 104.
Council of the European Union has formally requested the European Parliament’s consent to its decision
on the conclusion of the EU-UK Trade and Co-operation Agreement (TCA), and
associated agreements reached between the EU and UK at the end of the Brexit
transition period. The European Parliament’s consent will pave the way
for the Council’s adoption of the decision on the final
conclusion of the agreements, marking the last steps in the EU’s ratification of the
agreements and allowing their full entry into force. In the meantime, following
its adoption, the TCA Partnership Council’s decision extending provisional
application of the TCA until 30 April 2021 entered into force on 26 February
2021. The decision has been published in the Official Journal of the European
Union (OJEU). See: LNB News 01/03/2021 78.
Estate, Corporate and Finance analysis: Katherine Crowley of Womble Bond
Dickinson, Dominic Sedghi of Macfarlanes and Jamini Raja of Addleshaw Goddard
consider the publication of guides and checklists by various groups of
professional support lawyers on the use of e-signatures, as well as the impact
of the coronavirus and what the future holds for e-signatures. See News Analysis: Future of e-signatures for real estate, corporate and finance transactions.
Financial Reporting Council (FRC) has published guidance for companies on
transparent and effective reporting when diverging from provisions under the UK
Corporate Governance Code (UKCG Code). The central theme of the new guidance is
flexibility. The guidance also recommends easy
access to the provisions of the UKCG Code which have been departed from, and to
set out clear and effective explanations for any divergence. See: LNB News 26/02/2021 66.
has called on businesses to act now to ensure they are ready when the Children’s Code comes into force in
six months. The Code will comprise 15 standards that must be met when it comes
to protecting children’s data online. The ICO has
undertaken industry research to gauge the extent to which businesses understand
the Code, the results of which will be published in May 2021, and preliminary
analysis suggests many businesses have not progressed past the preparation
stages yet. See: LNB News 02/03/2021 103.
has also launched a call for ideas and examples of privacy information designs
that cover some or all of the good practice outlined in the Children’s Code transparency
standard. The ICO is keen to hear from stakeholders including online services,
children’s rights advocates, designers and academics
by 11pm 30 April 2021. Submissions can cover any relevant sector and be
speculative designs, early-stage prototypes or projects already in use. See: LNB News 02/03/2021 20.
Information Commissioner, Elizabeth Denham, has highlighted both the value and
the challenges of modern data protection in a speech delivered at the Oxford
Internet Institute on 3 March 2021. Denham stressed the necessity of public
trust in data-driven innovation to maximise its positive impact. According to
Denham, data-driven innovation should be part of the UK economy recovery
strategy and discussions about the fair use of personal data should be
undertaken with the public. See: LNB News 03/03/2021 117.
companies could see a rise of ‘vaccine passports’ required by law to offer access
to certain venues, public events, or allow for international travel under plans
being considered by the government. Privacy campaigners have criticised the
move, and the ICO has also expressed concerns about the implications for
privacy. See News Analysis: Vaccine passport plans
spark UK privacy debate.
Real-estate company Deutsche Wohnen has seen the Berlin data protection
authority appeal against a German court’s recent annulment of a
fine of €14.5m. See News Analysis: Deutsche Wohnen’s data protection fine annulment appealed by Berlin watchdog.
French data protection regulator, the Commission Nationale de l’Informatique et des Libertés
(CNIL), has fined both a controller and a processor for the same data security
breach. The CNIL has also set a deadline for website and mobile applications to
meet cookies compliance. Jonathan Armstrong and André Bywater, both commercial
lawyers at Cordery with a focus on compliance issues, discuss the implications
of this case. See News Analysis: French regulator CNIL
fines data controller and data processor for security breach and sets deadline
for cookies compliance.
has published an enforcement notice and a monetary penalty notice to Valca
Vehicle and Life Cover Agency Ltd. The £80,000 fine comes after a total of
95,004 unsolicited direct marketing messages were received by subscribers
between 15 June 2020 and 20 July 2020, resulting in 114 complaints. See: LNB News 25/02/2021 77.
has issued a fine of £50,000 to Muscle Foods Ltd after it sent approximately
135,651,627 marketing emails and 6,354,426 marketing SMS messages to
individuals without their consent over a period of seven months. See: LNB News 03/03/2021 50.
Spring Budget 2021, on 3 March 2021, the Chancellor of the Exchequer, the Rt
Hon Rishi Sunak MP, announced the extension of the Coronavirus Job Retention
Scheme, the confirmation of the fourth and fifth SEISS grant, income tax
exemptions for coronavirus tests and home office expenses, high quality
traineeships for younger people, payments for employers hiring new apprentices,
support for apprenticeships across different employers, new technology to help
with job finding, publication of the Low Pay Commission’s 2021 Remit, SSP rebate
scheme, relaxation in Working Tax Credit hours requirement and additional
support for Working Tax Credit claimants. Partner at Baker & McKenzie LLP,
Stephen Ratcliffe, partner at Kingsley Napley, Katie Newbury, barristers at
Richmond Chambers, Zoe Bantleman and Georgina Griggs and barrister at Pump
Court Tax Chambers, Emma Chamberlain comment on the measures announced and the
impact on employment. See: LNB News 03/03/2021 125.
Advisory, Conciliation and Arbitration Service (ACAS) has updated its guidance on getting the coronavirus
vaccine for work. A new section has been added on how to offer support to staff
that are getting the vaccine, and the section on what employers should do if
they feel it is important for staff to receive the vaccine has been updated. Sections
on disciplinary action and the options available to staff if they believe their
employer is being unreasonable about the vaccine have been replaced with a
general section on how to resolve any workplace issues about getting the
vaccine. See: LNB News 01/03/2021 85.
February 2021, the government introduced new measures requiring those
travelling to England from a ‘red-list’ country, or those who have
travelled through a ‘red list’ country in the ten days
prior to arrival, to quarantine in government managed hotels for ten days.
Kerry Garcia, partner, Sarah Taylor, PSL and Lucy Hall, trainee, at Stevens
& Bolton examine the possible ramifications and the key considerations for
employers. See News Analysis: Welcome to the hotel
quarantine—key considerations for
Department for Work and Pensions (DWP) has published the government response to its automatic enrolment
consultation, which aimed to review the alternative quality requirements for
pension schemes used for automatic enrolment into workplace pensions. Upon
reviewing the consultation responses, the Secretary of State for Work and
Pensions, Thérèse Coffey, has concluded that the alternative quality
requirements made under section 23A(1) of the Pensions Act 2008
should continue without revisions. See: LNB News 25/02/2021 71.
advisory fuel rates for employers with company car schemes, which apply to all
journeys made on or after 1 March 2021, have been released by the government.
See News Analysis: Company car fuel: revised
advisory rates to take effect from 1 March 2021.
In UQ v Marclean Technologies
SLU, C-300/19, the Court of Justice of
the European Union (CJEU) considered when the obligation for consultation on
proposed redundancies, referrable to the number of proposed redundancies, is
triggered under the Collective Redundancies Directive. This decision has
important implications for the interpretation of section 188 of the Trade Union and
Labour Relations (Consolidation) Act 1992 and the obligations of consultation
in domestic law. Written by David Reade QC and Daniel Northall of Littleton
Chambers. See News Analysis: Counting to 20—the CJEU judgment in UQ v Marclean Technologies SLU.
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