16 November 2020
Radar - November 2020 – 2 of 3 Insights
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.
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.
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.
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:
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:
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:
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:
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: