12 October 2018
More technical notices have been published but are we any the wiser?
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.
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.
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.
The technical notice on personal data flows is short and not particularly enlightening. There are, however, a few points of interest:
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.
See our article for more on the technical notices which impact on intellectual property rights.
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.
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:
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:
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:
Manufacturers placing products on the EU internal market should note:
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