Debbie Heywood

Senior Counsel – Knowledge

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Debbie Heywood

Senior Counsel – Knowledge

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16 November 2020

Radar - November 2020 – 2 of 3 Insights

Getting ready for the end of Brexit transition

  • Briefing

What's the issue?

The Brexit transition period which has maintained the 'status quo' since the UK left the EU expires on 31 December 2020. While the COVID-19 pandemic has largely thrown Brexit out of the headlines during the last six months, if the EU and UK do not reach a deal, trade between the two blocs will be thrown into disarray. There are rumours that a deal is imminent although it is difficult to predict what that would involve. There is, however, more clarity in terms of applicable legislation in the UK and how that will change after the end of the Brexit transition.

What's the development?

The government has been publishing updated statutory instruments and guidance across a wide range of areas. We pick out below some of the most relevant to commercial tech and data published over the last month.

What does this mean for you?

Businesses will need to keep track of changes in the law, both in the UK and in the EU where they are cross-border or have cross-border supply chains. The government has run a series of webinars but much of the advice it is putting out is sketchy to say the least – along the lines of 'you need to prepare'. The Institute for Government's recently published report on UK readiness for the end of the Brexit transition period commented that the government's communication campaign to businesses had, until recently, focused too heavily on selling the opportunities of Brexit. It recommended that the government should clearly communicate the practical impact of leaving the single market and customs union – in particular, the greater level of bureaucracy traders will face from the end of the year, deal or no deal. Given the uncertainties, it is particularly important to understand the areas where there is a degree of certainty, for example, in terms of how the law will apply in the UK from 1 January 2021.

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Draft Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2020

The draft Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2020 amend the 2019 data protection Brexit Regulations to change references to exit date to IP completion day. Other changes:

  • reflect the CJEU ruling in Schrems II which struck down the EU-US Privacy Shield and update related issues in previous amending legislation
  • reflect the Japan adequacy decision which was confirmed after the 2019 DP Brexit Regulations
  • set out revised transfer provisions for law enforcement data to include the addition of EEA counties.
  • allow continued reliance on non-ICO approved BCRs after the end of the transition period provided a valid notification has been made to the ICO and the ICO has approved them. For a notification to be valid, it must be made by a controller or processor in the UK before the end of six months from IP completion day and must include specified information.

For more on data transfers after the end of transition, see our suite of articles on the Global Data Hub.

Draft SI prepares for UK lower courts to be able to overturn CJEU decisions

The government has laid the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU case law) Regulations 2020 before Parliament. The Regulations provide for "Relevant Courts" as well as the Supreme Court and the Scottish High Court of Justiciary to depart from retained EU case law under certain circumstances.

Relevant courts include the Court of Appeal of England and Wales and equivalent courts across the UK.  They will have to apply the same test as the Supreme Court in order to depart from retained EU case law ie where they determine "it is right to do so". Departure from UK retained law will only be permitted in accordance with the usual order of precedence.

In a policy change, this appears to allow, in particular, for the Court of Appeal to depart from CJEU decisions without having to refer a case to the Supreme Court. Previously, the position was that only the Supreme Court (and Scottish equivalent) would be able to depart from retained EU law decisions.

Draft Regulations on "qualifying Northern Irish goods" under UK Internal Market Bill

The draft Definition of Qualifying Northern Ireland Goods (EU Exit) Regulations 2020 define "qualifying Northern Ireland goods" (QNIGs) for the purposes of the UK Internal Markets Bill which prohibits new checks or controls, and any existing checks being used for the first time on QNIGs, and applies principles of mutual recognition and non-discrimination to them.

Under the draft Regulations, a QNIG can be either:

  • a good lawfully presented in Northern Ireland and not subject to customs control (other than customs procedures arising on export)
  • a good that has been processed in Northern Ireland (which includes assembly, fitting to other goods and handling).

The explanatory memorandum says this is in line with the broader approach being taken to EU goods arriving into Great Britain for the first half of 2021.

Updated DCMS guidance on the eCommerce Directive

DCMS has published updated guidance on the applicability of the eCommerce Directive after the end of the Brexit transition period. Confirming (again) that the country of origin principle will no longer apply, it advises that:

  • online providers check whether they are within the scope of the Directive and, if so, check where their service is based
  • an ISS provider established in the UK should check for legal requirements in EEA countries in which it operates. These may relate to online information, advertising, shopping and contracting. UK-based ISS providers may also become subject to 'prior authorisation' schemes such as licensing requirements in relevant EEA countries
  • UK-based ISS providers should ensure they have processes in place to monitor ongoing compliance if requirements in other EEA countries change.

The guidance confirms the government is not currently planning to change the provisions in the Directive which deal with intermediary liability and which prohibit a general monitoring obligation.

Updated guidance on broadcasting and VOD from the end of Brexit transition

The government has republished guidance on the rules for broadcasting and video-on-demand (VOD) after the end of the Brexit transition period.

The AVMS Directive will no longer apply to services under the UK jurisdiction broadcasting into the EU. The twenty countries signed up to the European Convention on Transfrontier Television (ECTT) must allow freedom of reception to services under UK jurisdiction and vice versa. UK services available in the EU will need an Ofcom licence for services receivable in the UK and other ECTT countries and separate licences covering services receivable in non-ECTT EU countries. EU services available in the UK broadcast from an ECTT country will not need additional licences but services from non-ECTT counties will need an Ofcom licence. The UK will continue to permit licence-free reception to reflect commitments in the Good Friday agreement.

The ECTT does not provide freedom of reception for VOD services. They will need to continue to comply with AVMS Directive jurisdiction rules. The regulation and authorisation of VOD services will be determined in individual states.

From 1 January 2021, services can still qualify for AVMS Directive jurisdiction in an EU Member State even if their head office is in the UK, if they meet the jurisdiction requirements in Articles 2(3) to (4).

ADR for Consumer Disputes (Extension of Time Limits for Legal Proceedings) (Amendment etc) (EU Exit) Regulations 2020

These Regulations amend the:

  • Limitation Act 1980
  • Foreign Limitation Periods Act 1984
  • Prescription and Limitation (Scotland) Act 1973
  • Limitation (Northern Ireland) Order 1989.

They remove references to the ADR Directive and ensure that the applicable statutory time limit for launching court proceedings will only be extended in cases where the consumer is resident in the UK and uses the services of an ADR provider authorised within the UK.

IPO guidance on IP after the end of Brexit transition

The IPO has published updated general information on IP after the end of Brexit transition, together with more detailed guidance notes. Key changes include:

  • UK attorneys will be unable to represent new clients on new applications or new proceedings at EUIPO.
  • The IPO is considering making changes on service addresses after the end of transition.
  • Comparable UK trade marks and registered design rights will be created for current EU registrations at the end of transition. There will be a nine month period for applications pending at the end of transition, to apply for equivalent UK protection.
  • Re-registered UK designs will be created for every registered Community design at the end of transition.
  • International trade marks and designs designating the EU will continue to have protection in the UK. Comparable UK trade marks will be created for every international (EU) trade mark and a re-registered UK design for every international (EU) design which is protected at the end of the transition period.
  • Unregistered community designs that arise before the end of the transition period will continue to be protected in the UK for the remainder of their three year term and a supplementary unregistered design (SUD) will become available in the UK providing UK protection only.
  • Applications for European patents can continue to be made through the IPO or direct to the European Patent Office. Existing European patents covering the UK are also unaffected. European patent attorneys based in the UK will continue to be able to represent applicants before the EPO as it is not an EU organisation.
  • Supplementary Protection Certifications (SPCs) pending before the end of transition will be examined under the current framework. New applications will continue to be made to the IPO but changes to market authorisations will affect the application process from the end of transition. SPC holders will need to check whether their marketing authorisations are valid for the whole of the UK or just NI or GB.
  • The IP rights in goods placed on the UK market by or with the consent of the right holder after the transition period may no longer be considered to be exhausted in the EEA, so businesses parallel exporting these IP-protected goods from the UK to the EEA may need the consent of the right holder. The IP rights in goods placed on the EEA market by or with the consent of the right holder after the transition period will continue to be considered exhausted in the UK, so parallel imports into the UK from the EEA will be unaffected.
  • Most UK copyright works will still be protected in the EU and the UK. Cross-border portability of online content services, copyright clearance for satellite broadcasts, reciprocal protection for database rights and the orphan works exception will end at the end of the transition period.
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