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22 September 2021
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Law analysis: On 4 June 2021, the European Commission published its final
Implementing Decision adopting new standard contractual clauses for the
transfer of personal data to third countries. This follows the draft
implementing decision and clauses issued by the Commission for consultation on
12 November 2020. The Implementing Decision is effective on the 20th day
following its publication in the Official Journal of the EU (OJEU), which
occurred on 7 June 2021, meaning that the clauses can be used from 27 June
2021. Ariane Mole, Ruth Boardman and Gabriel Voisin, partners at Bird &
Bird explain. See News Analysis: The new EU GDPR standard
contractual clauses for international transfers, LNB News 04/06/2021 47 and LNB News 07/06/2021 21.
European Commission has also published a decision and associated standard
contractual clauses (SCCs) to fulfil the requirements for contracts between
controllers and processors in Article 28(3) and (4) of Regulation (EU)
2016/679, the EU’s General Data Protection
Regulation (the EU GDPR) (and of equivalent requirements of Article 29(3) and (4) of Regulation (EU)
2018/1725 which governs the processing of personal data by EU institutions).
See: LNB News 07/06/2021 15.
Implementing Decision (EU) 2021/915 of 4 June 2021 on SCCs between
controllers and processors under Article 28(7) of Regulation (EU)
2016/679 of the European Parliament and of the Council and Article 29(7) of Regulation (EU)
2018/1725 of the European Parliament and of the Council, has been published in
the Official Journal. See: LNB News 07/06/2021 20.
Court has ruled that an EU representative appointed under Article 27 of Regulation (EU)
2016/679, the General Data Protection Regulation (GDPR) is not directly liable
for the non-compliance of the entity it represents. The representative’s liability is instead
limited to its compliance with its own statutory obligations (in its capacity
as such). The ruling is a pragmatic and welcome interpretation of some
ambiguity within Article 27 and Recital 80 of the GDPR, which had previously
caused some uncertainty. It is worth noting that, following Brexit, businesses
which are based outside the EU and UK and which process personal data of EU or
UK data subjects now need to consider the appointment of not only an EU
representative but also a UK representative. Written by Hamish Corner, partner
at Shoosmiths LLP. See News Analysis: Liability of an EU
representative appointed under Article 27 of the GDPR (Rondon v LexisNexis Risk
Information Commissioner’s Office (ICO) has fined
the Conservative Party £10,000 for sending 51 marketing emails to people who
did not want to receive them. The emails promoting the party’s political priorities were
directly addressed to the people they were sent to by name and included a link
directing them to a website for joining the Conservative Party. See: LNB News 03/06/2021 10.
has also fined Colour Car Sales Ltd (CCSL), Solarwave Ltd and LTH Holdings a
total of £415,000 for sending nuisance marketing to people about car finance,
solar panels and funeral plans. All three companies did not have the valid
consent required to send direct marketing and this is against the Privacy and
Electronic Communications Regulations 2003, SI 2003/2426. See: LNB News 08/06/2021 72.
non-profit organisation whose name is a play on ‘none of your business’, has announced it has
developed software to automatically detect websites that use deceptive
practices to frustrate the public into consenting to cookies. The non-profit
has said that 90% of users agree to cookies, when statistics show that only 3%
actually want to agree. In an opening salvo, NOYB has sent draft GDPR
complaints to 500 companies, and plans to send another 10,000 over the next
year. NOYB has said that it will give companies a one-month grace period before
filing official complaints. See: LNB News 07/06/2021 50.
Crown Prosecution Service (CPS) has updated its guidance on money laundering
offences, particularly in relation to the prosecution of standalone ‘failure to disclose’ cases under section 330 of the Proceeds of Crime
Act 2002 (POCA 2002). The guidance now
clarifies that a POCA 2002, s 330 offence can be prosecuted
after 2 June 2021 irrespective of whether an offence of money laundering has
been substantiated. The updated guidance aims to encourage people to come
forward to disclose any suspicion of money laundering to law enforcement. See: LNB News 04/06/2021 40.
Commission has opened a consultation on whether the law regarding corporate
criminal liability can be improved to adequately punish offences committed by
corporations, and if so, in which ways. Potential improvements suggested by the
Law Commission include reforming the identification principle to encompass
companies with complex decision-making structures, and extending the scope of ‘failure to prevent’ offences to cover fraud
and other offences an employee may commit which benefit the company. Responses
should be sent in by 31 August 2021. See: LNB News 09/06/2021 86.
International companies and their lawyers have long struggled to satisfy
competing imperatives contained in US and EU legislation across myriad
regulatory regimes. See: Warnings and guideposts
from EU sanctions blocking case.
Advertising, marketing and sponsorship
Google will tweak its advertising technology offerings for connecting
advertisers and publishers and pay a €220m ($US 268.3m) fine,
under an antitrust settlement that French antitrust authorities announced on 7
June 2021. See: Google settles French antitrust
probe for $US 268m.
Cabinet Office has published the policy paper ‘Summary: The UK’s new relationship with the
EU’, which outlines the state of play
following the UK’s withdrawal from the EU.
In the explainer, an overview of ‘what has changed, and what
remains the same’, is provided. Areas
covered include: travelling to the EU, living, working or moving to the EU,
trade in goods and services, intellectual property, road transport, public
procurement, participation in EU programmes, and fisheries. See: LNB News 09/06/2021 74.
European Commission has announced an initiative to revise EU competition rules
on horizontal agreements, specifically to revise the exemption rules on
research and development, and specialisation agreements and the accompanying
guidelines. The Commission aims to provide companies with clear guidance on
horizontal co-operation agreements that can be concluded without the risk of
competition law infringement, and aims to simplify administrative supervision
of horizontal co-operation agreements by national competition authorities,
national courts and the Commission. The consultation closes on 5 July 2021.
See: LNB News 07/06/2021 78.
concerned a contract for the sale of a classic Ferrari car whose gearbox had
become separated. There was a dispute as to whether or not the claimant was a
party to the contract, in circumstances where the claimant was identified in
the heading of the contact as ‘agent for an undisclosed
principal’ but where its signature as a party to the
contract was unqualified. The court held that the claimant was indeed the
contracting party, and made findings as to the effect of the sale contract by
reference to the principles set out in SGA 1979. Written by John Bignall,
barrister at 7 King’s Bench Walk. See News
Analysis: Contract—sale of goods, identity of contracting parties (Fisken v Carl).
Beverages Europe v Bacardi UK dealt with the distinction between guarantees and
indemnities in a complex written agreement. Having decided that certain
obligations were guarantees and others indemnities, the case goes on to deal
with the effect of a claim of equitable set-off and the extent to which the
variation of the underlying agreement can release a guarantor from liability,
following the so-called ‘rule in Holme v Brunskill’. The judgment also
contains a very useful summary of the various Supreme Court authorities on
interpretation of contracts and implied terms. Written by Steven Fennell,
barrister at Exchange Chambers. See News Analysis: Guarantees, indemnities,
set-off and variation (Brown-Forman Beverages Europe v Bacardi UK).
European Commission has proposed a framework for European Digital Identity,
available to all EU citizens, residents and businesses within the EU. Through
European Digital Identity wallets, citizens will be able to provide their
identity and share electronic documents and access online services with their
national digital identification. Large platforms will be required to accept the
use of European Digital Identity wallets on the request of the user. The
Commission has announced that under the new regulation, Member States will
offer citizens and businesses digital wallets that link to their national
digital identities with proof. The new European Digital Identity wallets
provide users control of the data they share and enables access to services
online without having to use private identification methods. See: LNB News 04/06/2021 7.
government has opened a consultation in search of views on the UK’s future regime for the
exhaustion of intellectual property rights. The government says that the future
regime will underpin future rules on parallel imports into the UK. Following
the UK’s exit from the EU, the government now can
change these rules. The consultation will run until 31 August 2021. See: LNB News 07/06/2021 67.
Department for International Trade has published the speech of the Secretary of
State of International Trade, Liz Truss, who spoke at DLA Piper on future
opportunities for the UK in sectors like services and digital. See: LNB News 09/06/2021 79.
Department for Environment, Food & Rural Affairs has published updated
guidance for stakeholders. Subjects covered in this guidance include importing
food and drink, importing composite food products and importing fish and
fishery products. See: LNB News 09/06/2021 8.
updated its import, export and customs guidance to reflect the post-Brexit
regime. The update covers the period from 31 May 2021 to 7 June 2021. See: LNB News 07/06/2021 16.
Supply of goods
European Commission has published the Product safety – Publication of references
to standards under the General Product Safety Directive initiative. The
initiative decision aims to establish the compliance of specific European
standards with the general safety requirements of the General Product Safety
Directive (GPSD) and publish reference to the standards in the Official Journal
of the European Union. Products meeting the standards will conform with the
GPSD in the risks and risk categories, which will help businesses and market
surveillance authorities as well as improving the safety of consumers. See: LNB News 03/06/2021 5.
Department for Business, Energy, and Industrial Strategy (BEIS) has published a study into the
relationships between CEO performance targets, the pay incentives associated
with those targets and firm investment for companies listed on the FTSE
All-Share Index. See: LNB News 07/06/2021 84.
Quoted Companies Alliance (QCA) has published a report on the workings of board
performance reviews in relation to small- and mid-sized enterprises (SMEs). The
report assesses how the reviews are undertaken, considers the varying
approaches between companies, and looks at how effective the different
approaches are. The report is freely available for non-members to download from
the QCA website, subject to the provision of their name and email details. See:
LNB News 04/06/2021 15.
Climate Disclosure Standards Board (CDSB) has published a joint statement issued by ten stakeholders
with a common interest in sustainable finance, including the Association of
Chartered Certified Accountants (ACCA), Accountancy Europe, CDSB, the World
Wildlife Fund (WWF), Schroders, the European Sustainable Investment Forum
(Eurosif) and ShareAction, on the European Commission’s sustainable corporate
governance initiative. See: LNB News 09/06/2021 28.
Equity capital markets
analysis: HM Treasury is consulting on a new targeted power to
allow the government to block company listings on national security grounds.
The proposals include companies within scope making additional disclosures about
their business, management, major shareholders and any offer of securities.
Views are sought on the content, timing and method of the disclosures. The
consultation closes on 27 August 2021. See News Analysis: Analysing the Treasury
consultation on the power to block listings on national security grounds and LNB News 07/06/2021 37.
London: In Bankia SA v Union Mutua Asistencial de Seguros C-910/19, the European Court of
Justice (ECJ) ruled on 3 June 2021 that sophisticated investors can sue
companies under the EU's prospectus rules if the information that they publish
about their business ahead of offering securities is misleading. See: EU prospectus rules allow
sophisticated investors to sue and also LNB News 17/02/2021 96 (as regards a preliminary
ruling given by the advocate general of the ECJ earlier this year).
Accounts and reports
Taskforce on Climate-related Financial Disclosures (TCFD) has launched a public consultation on
two documents: its ‘Proposed guidance on
climate-related metrics, targets and transition plans’, and the associated ‘Measuring portfolio
alignment: Technical supplement’. The proposed guidance is
intended to provide general guidance for organisations seeking to establish
relevant metrics, targets and transition plans around their climate-related
risks and opportunities. The consultation closes on 7 July 2021 and the TCFD
will take the consultation responses into consideration when releasing final
guidance in autumn 2021. See: LNB News 08/06/2021 52.
Competitions and Markets Authority (CMA) has announced its investigating of
Facebook for potential abuse within social media or the digital advertising
market, through the collection and use of advertising data. The investigation
intends to look into whether Facebook has gained an unfair advantage over
competitors in providing services for online classified ads and online dating via
the way they gather and use certain data. The European Commission has also
launched its own investigation into Facebook’s data use and the CMA will
seek to work with the European Commission. See: LNB News 04/06/2021 81.
appeal in R (oao Open Rights Group and The3Million) v Secretary of State  All ER (D) 01 (Jun) was a challenge to the
lawfulness of the Immigration Exemption contained within paragraph 4 of
Schedule 2 of the Data Protection Act 2018 (DPA 2018). The Immigration
Exemption allowed important data protection rights to be restricted by data
controllers if it was said compliance with the rights in question would
prejudice the maintenance of effective immigration control. This broad
Immigration Exemption could be applied not only by public bodies but also
private entities such as banks and landlords. The Court of Appeal allowed the
appeal, ruling unanimously that the Immigration Exemption contained inadequate
safeguards and was incompatible with Article 23 of the General Data Protection
Regulation (EU GDPR). A hearing to determine the appropriate remedy will take
place later this summer. This ruling is likely to strengthen the data rights of
individuals subject to immigration control in the UK. Written by Waleed Sheikh,
an associate solicitor at Leigh Day.See News Analysis: Court of Appeal rules
Immigration Exemption lacks appropriate legal safeguards (R (oao Open Rights
Group and The3Million) v Secretary of State).
European Commission has announced an initiative to revise the 2014 eIDAS Regulation
on electronic transactions, extending it to the private sector and promoting
trusted identities for all Europeans. The EU digital ID scheme (EUid) for
online transactions across Europe aims to give people greater control over
their personal data and privacy and make it safer and easier to use online
services anywhere in Europe. The commission is seeking views to feed into the
legislative debate. The consultation will close on 2 August 2021. See: LNB News 07/06/2021 82.
European Commission has opened a consultation seeking views from Member States’ public authorities,
academic and research institutions, business associations, industrial clusters,
companies, consumer organisations, NGOs, trade unions and citizens. The
Commission hopes to gather input on measures to create a fair data economy by
establishing better control and conditions for data sharing for citizens and
businesses. The consultation will run until 3 September 2021. See: LNB News 03/06/2021 40.
Advertising Standards Authority (ASA) has launched a call for evidence on
racial and ethnic stereotyping in advertising. The call for evidence seeks to
establish whether, and, if so, to what extent, racial and ethnic stereotypes,
when featured in ads, may contribute to real world harms—for example, unequal
outcomes for different racial and ethnic groups. ASA welcomes responses from
all members of the public. The deadline for responses is 30 June 2021. See: LNB News 08/06/2021 102.
and Markets Authority (CMA) has published the summary of responses to the
consultation on its paper on algorithms, competition and consumer harm. Most of
the 35 respondents agreed that the CMA has identified the correct harms to
focus on in this consultation, but highlighted certain nuances, the need for
legal analysis, empirical evidence and a proportionate approach for any
investigation into the harms outlined. Respondents also suggested further harms
that were missing from the scope of the paper, such as harms from firms’ use of data, economic
harms arising from the sharing of consumer data, and potential harms of
algorithms to democracy. See: LNB News 07/06/2021 45.
of the European Parliament (MEPs) have debated the proposed regulatory
framework for Artificial Intelligence (AI) with the European Commission Vice
President, Margrethe Verger. MEPs sought to ensure sufficient protection of
citizens' rights while encouraging the development of a Digital Single Market.
See: LNB News 03/06/2021 7.
European Commission has published the preliminary results of its competition
sector inquiry into markets for consumer Internet of Things (IoT) related
products and services in the EU. The IoT sector inquiry was launched on 16 July
2020 as part of the Commission's digital strategy. Following the publication of
its preliminary report, it will now be subject to a public consultation until 1
September 2020. The Commission hopes to publish its final report on the subject
during the first half of 2022. See: LNB News 09/06/2021 82.
Treasury (HMT) has said its Plan for Jobs is working with 1.3 million employees
moving off furlough in March 2021 and April 2021. Figures show that 2.8 million
individuals have benefitted from the Self-Employment Income Support Scheme. The
Kickstart scheme is also creating thousands of new jobs for young individuals
and ‘a range of business grants and loans have
provided a bridge so that businesses can make it through the pandemic.’ HMT has also said the
furlough scheme will continue until the end of September 2021, to provide
support beyond the end of the coronavirus roadmap. See: LNB News 04/06/2021 16.
International Regulatory Strategy Group (IRSG) has published a report on how
policy-makers, companies and financial markets participants can work together
to drive more socially sustainable investment, noting that the ‘S’ in ‘ESG’ (environmental, social and
governance) can be more difficult for investors to define and quantify, with a
lack of consistency and comparability in approaches impeding the drive towards
more sustainable investments. See: LNB News 07/06/2021 72
Equality of terms.
Article 157 of the Treaty on the
Functioning of the European Union (TFEU) must be interpreted as having direct
effect in proceedings between individuals claiming a failure to observe the
principle of equal pay for male and female workers for ‘work of equal value’. Furthermore, Article 157 TFEU includes within its
scope situations where the pay conditions of workers of different sex
performing equal work or work of equal value can be attributed to a single
source, with the effect that the pay of those workers can be compared on the
basis of that article, even if the workers perform their work in different
establishments, according to the Court of Justice of the European Union (CJEU).
See News Analysis: Article 157 TFEU has
direct effect in equal pay claims for work of equal value (K and others v Tesco
handbooks and other documents
Advisory Conciliation and Arbitration Service (Acas) has issued a
statement on the subject of fire and rehire practices, which contains views
from a range of participants in relation to their experiences on the use of
fire and rehire. The Department for Business, Energy and Industrial Strategy
(BEIS) asked Acas to carry out an evidence gathering exercise in order to learn
more about the use of fire and rehire practices. During the exercise, Acas
engaged with various stakeholders, including: employer bodies, trade unions,
professional bodies and networks with advisory contact with employers, covering
employment lawyers, accountants, HR and payroll services, academics and Acas
senior advisers. See: LNB News 08/06/2021 101.
Practice, procedure and settlement
issue in Alta Trading UK Ltd (formerly known as Arcadia Petroleum Ltd) v
Bosworth  EWCA Civ 687 was whether two
former directors were in a relationship of subordination such that the employee
protection provisions in Articles 18–20 of the Lugano Convention
applied and the claims against them should have been brought in Switzerland,
where the directors were domiciled. The Court of Appeal confirmed the test to
be applied was whether the directors had a non-negligible ability to influence
the putative employer’s business and the
performance of their own duties. The reasoning is likely to impact on the
post-Brexit employment protection provisions and the decision may contribute to
the debate on where the boundaries of protection lie in domestic employment
status cases. Written by Edward Kemp, barrister at Littleton Chambers. See News
Analysis: Court of Appeal confirms
the boundaries of protection for employment under the Lugano Convention (Alta
Trading UK v Bosworth).
Status and worker categories
recent landmark case of Uber v Aslam, the Supreme Court found that drivers
working for Uber London Ltd were workers. In this analysis, Jason
Galbraith-Marten QC and Chris Milsom of Cloisters examine the reasons for the
Court’s decision and its potential future impact.
See News Analysis: The consequences of the
Supreme Court decision in Uber.
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