12 October 2018

Government publishes more 'no deal' Brexit technical notices

More technical notices have been published but are we any the wiser?

What's the issue?

On 29 March 2019, the UK will exit the European Union. While a transition period has been provisionally agreed, it is dependent on the UK and the EU reaching agreement on withdrawal. Although much does appear to have been agreed, there are a number of significant outstanding issues, perhaps the most intractable of which is the question of the Irish border.

If we crash out of the EU on 29 March without a deal on either exit or our future trading relationship, many UK businesses will be in uncharted and turbulent waters. Opinions differ as to how serious the ramifications may be, but there are very few who think this is a desirable outcome.

What's the development?

We reported last month on the publication of the first 25 in a planned batch of 50 technical notices, together with an overarching framework notice. The government has now published the remaining notices, setting out the government's views of what will happen in specific areas and providing some advice.

What does this mean for you?

There are some useful nuggets of information but, as a general rule, these technical notices set out very little detail. They certainly fall a long way short of providing a roadmap to navigate a no deal scenario. Some of the more relevant to the commercial, technology, media and data sectors are summarised below.

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EU-UK data flows in the event of no deal Brexit

The technical notice on personal data flows is short and not particularly enlightening. There are, however, a few points of interest:

  • The government confirms that data will be permitted to flow from the UK to the EEA after Brexit without any additional steps: "In recognition of the unprecedented degree of alignment between the UK and EU's data protection regimes, the UK would at the point of exit continue to allow the free flow of personal data from the UK to the EU. The UK would keep this under review".
  • The government confirms that the EU will not begin an adequacy process for the UK until the UK is a third country. This means that if there is a transitional period following an exit deal, an adequacy arrangement could be reached during that period, but if there is a no deal Brexit, there is no likelihood of an adequacy decision by 29 March 2019.
  • The ICO will "produce additional guidance outlining the steps organisations would need to take to continue to meet their obligations" in the event of a no deal Brexit. It is unclear whether this would relate specifically to Brexit or to data protection compliance in general (for example, by adopting EDPB guidance).

Unsurprisingly, the government recommends organisations take steps to protect data flows and suggests Standard Contractual Clauses as the most suitable mechanism to allow EEA organisations to export personal data to the UK in the event of a no deal Brexit.

IP- trademarks, design rights and exhaustion of rights.

See our article for more on the technical notices which impact on intellectual property rights.

Broadcasting and video on demand

This technical notice stresses that, in the event of a no deal Brexit, the country of origin principle will no longer apply to services under UK jurisdiction that are broadcast into the EU as the UK will be a third country.

20 EU Member States have signed the ECTT framework and will be required to permit freedom of reception for services under UK jurisdiction and the UK would be required to permit freedom of reception for services which originate from EU and non-EU countries that are parties to ECTT.

The government advises that it is up to individual licensees to assess whether their current licence will continue to be accepted in any EU country in which their service is made available. Where the country is an ECTT member, licensees should seek local advice as to how the country deals with ECTT obligations to permit freedom of reception. Ofcom licences may be recognised.

It is possible to fall within the country of origin principle under the AVMSD if the provider moves its decision making function and a significant part of its workforce (although not necessarily its head office) to the EU, or if a service is provided via an uplink in an EU country.

Trading in goods with EU Member States

Trading under the mutual recognition principle

The mutual recognition principle prevents EU countries from prohibiting the sale of goods which have already been legally sold in another EU Member State. This applies even where countries have different national requirements covering the good (i.e. to non-harmonised goods).

In the event of a no deal Brexit:

  • UK businesses exporting non-harmonised goods to the EU market will need to meet the national requirements of the first EU country they export to.
  • UK businesses which have already exported a non-harmonised good to an EU country by meeting the relevant national requirements will not need to take any specific action.
  • UK businesses which import non-harmonised goods to the UK will need to ensure that the goods meet UK national requirements regardless of whether or not they were previously lawfully marketed in another EU country or in the UK.

Future arrangements for nominated persons

This does not cover medicines and medical devices.

Businesses can appoint nominated persons (representative or authorised representative) to carry out tasks on their behalf as defined in applicable EU product legislation. In most cases this is optional but in some areas, for example, cosmetics, it is mandatory. In the event of a no deal Brexit, a UK-based nominated person will no longer be recognised under EU law. To minimise disruption, for the time being, existing authorised representatives in the EU will continue to be recognised by the UK but new authorised representatives will need to be based in the UK to be recognised under UK law. This means that:

  • Businesses with an authorised representative based in the UK will need to establish a new authorised representative in an EU country if they want them to carry out tasks on their behalf within the EU.
  • Businesses wishing to appoint a new authorised representative to carry out tasks on their behalf in the UK will need to appoint a representative located in the UK.
  • Businesses placing cosmetic products on the EU market will need to appoint a responsible person located in an EU country.
  • Businesses placing cosmetic products on the UK market will need to appoint a responsible person located in the UK.

Trading goods regulated under the 'New Approach'

Goods covered by the 'New Legislative Framework' and machinery are subject to EU-wide product specific rules. In particular, these cover conformity assessments. This notice does not cover medical devices, non-harmonised goods, or vehicles (plus a few other exemptions).

In the event of a no deal Brexit manufacturers placing products on the UK market should note:

  • Products that meet EU requirements can continue to be placed on the UK market without any need for retesting or re-marking, including where they have demonstrated compliance with EU requirements after exit day. This will apply for a time-limited period and sufficient notice will be given to businesses before that period ends.
  • Products that meet UK requirements and bear a UK conformity marking can be placed on the UK market, as long as any third-party testing required has been carried out by a UK-recognised conformity assessment body.
  • For product areas covered by this notice, UK-based notified bodies will become UK approved bodies after March 2019 and will be listed on a new UK database.

Manufacturers placing products on the EU internal market should note:

  • Products which were tested by a UK-based notified body will need to be retested by an EU-recognised conformity assessment body before placing on the EU internal market (A list of EU-recognised conformity assessment bodies can be found on the NANDO database. After March 2019, in a no deal scenario UK-based bodies will no longer be listed on this database).
  • Alternatively, manufacturers can seek to arrange for their files to be transferred to an EU-recognised notified body to allow for certificates of conformity issued by a UK-based notified body to continue to be valid.
  • In either of the scenarios above, products where third-party testing is required would need to be re-marked with the new EU-recognised notified body’s four-digit number.
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