STRONACHS LLP A GUIDE TO BREXIT DISCLAIMER Every possible effort has been made to ensure that the information contained in this guidance is accurate at the time of publication, and the editors, publishers and authors cannot accept responsibility for any errors, or omissions, however caused. No responsibility for loss or damage occasioned to any person acting, or refraining from action, as a result of the material in this publication can be accepted by the editors, the publisher or any of the authors. The law is as stated at 1700 hours on 2nd March 2021 Page | 1 ACKNOWLEDGEMENT Stronachs LLP would like to thank the following people who have contributed to the full Brexit Manual. David Chalmers, Partner James Downie, Partner Ewan Neilson, Partner Robert McDiarmid, Partner James Muir, Partner David Marshall, Senior Associate Annika Neukirch, Senior Solicitor Patrick Norris, Solicitor Lewis Armstrong, Trainee Solicitor Stef Hendry, Trainee Solicitor Cameron McCrum, Trainee Solicitor Mattie McGuire, Trainee Solicitor Lynn McDougall, Administration It is acknowledged by the firm their substantial effort in making this production possible. Ewan C Neilson 2nd March 2021 INDEX Introduction Page 1 Definitions Page 3 Structure of Brexit Page 6 What Effect will Brexit have on Commercial Contracts? Page 14 Enforcement of Court Judgements Page 20 How Will Data be Protected? Page 26 European Trade Mark Protection from 1 January 2021 Page 30 International Trade Mark Protection from 1 January 2021 Page 38 Changes to SPC and Patent Law from 1 January 2021 Page 45 Changes to EU and International Designs Protection from 1 January 2021 Page 48 Copyright Law from 1 January 2021 Page 54 Exhaustion of IP Rights and Parallel Trade Page 56 State Aid Page 57 Public Procurement Page 64 Importing Goods to the UK following Brexit Page 72 Exporting Goods from the UK following Brexit Page 78 VAT after Brexit Page 81 Rules of Origin Page 84 The Impact on UK Fishing Page 91 Agriculture Page 97 What Happens to REACH Page 101 What Changes Will be Made to Immigration, Right to Work and Employment Law? Page 105 European Travel Page 111 Questions and Answers Page 117 Contact List Page 129 INTRODUCTION This publication, A Guide to Brexit Planning was first published in March 2019 and then republished as a guide in December 2020 before the UK-EU Trade and Cooperation Agreement (TCA) and ancillary agreements had been published. When the TCA and other agreements were available to the public it soon became apparent that the TCA in particular was a radical departure from the earlier Bills put before Parliament. The Manual produced by Stronachs offers a guide for businesses, public bodies and interested individuals in particular areas of the Brexit Trade Deal but does not represent a definitive guide in all aspects of it. It is interesting to see the developments of the UK’s involvement in the Europe over the years. It was General Marshall’s offer of US loans and assistance to all European countries including the Soviet Union and the countries the Soviet Union had effectively occupied in Europe in 1948 that possibly triggered the Cold War through the rejection by the Soviet Union and the countries it occupied of that offer. This in itself led to the US promoting the concept of European unity through organisations to prevent Communist creep in Western Europe; the European organisations would be based on market economies, liberal democracy and the reduction of trade barriers. The UK had its own spheres of international interest being at that time the sterling area of influence and the Commonwealth countries. The then Prime Minister Attlee and the opposition leader, Churchill, promoted the concept of 3 interlocking circles – the US, Europe and the Commonwealth. When Jean Monnet first proposed that France should have a right to control and use the Saar coal for the French steel industry this was rebuffed by the US and other countries and evolved into the concept of a European Coal and Steel Community which was established in 1951 by the Treaty of Paris. The Shuman Declaration on 5th May 1949 was to declare a High Authority for the running of the French and German coal and steel industries putting them under joint control. It was also a deadline to the UK to either join it or leave the other countries to form it; this left the UK out of the original ECSC and out of the beginning of a political integration and a Customs Union in Europe. The UK joined the European Economic Community in 1973 but maybe a turning point for the UK and its relationship with Europe was the Maastricht Treaty in 1993 which then evolved into the Treaty of Lisbon. Article 50 of the Treaty of Lisbon was negotiated as a failsafe mechanism so that if any country wanted to leave the European Community as an alternative to further political integration in Europe it could do so. It was never intended at the time that any country would actually use it. However, on the 23rd June 2016 there was a Referendum in the UK in which a majority of 51.9% of the electorate voted to leave the European Union. There then followed the EU (Notification of Withdrawal) Act 2017, the European Union (Withdrawal) Act 2018, the European Union (Withdrawal Agreement) Act 2020 and the final divorce on 31st December 2020. The actual negotiations of the UK-EU Trade and Corporation Agreement, the UK-UE Security of Classified Information Agreement and the UK-Euratom Nuclear Corporation Agreement forming the forward looking Brexit Treaties were negotiated in secret so it was only at the beginning of January 2021 were the full terms disclosed. Page | 1 It could be said that the UK has gone full circle and returned to the Attlee/Churchill doctrine in which the UK’s interests are to maintain its relationship with the US, the EU and its international trading partners under free trade agreements with the European Union and other trading partners and therefore step outside further political integration in Europe. We view the TCA in particular as a fairly revolutionary approach to an FTA and we believe it represents a starting point with further negotiation between the UK and the EU both in months and years as to their future relationship. We hope this Brexit guide gives an introduction to some of the very complex issues that reside in the UK’s new relationship with Europe. Ewan C Neilson 2nd March 2021 Page | 2 DEFINITIONS TERM DEFINITION AEO Authorised Economic Operator AHC Animal Health Certificate BCR Binding Corporate Rules CAP Common Agricultural Policy CDS Customs Declaration Service CFP Common Fisheries Policy CHIEF Customs Handling of Import and Export Freight CJEU Court of Justice of the European Union CLP Classification, Labelling and Packaging CMA Competition and Markets Authority Commission European Commission Cooperation Agreement UK-EU Trade and Cooperation Agreement CPC Customs Procedure Code Data Protection, Privacy and Electronic Communications DP Brexit Regulations (Amendments etc) (EU Exit) Regulations 2019 ECA 1972 European Communities Act 1972 ECSC European Coal and Steel Community EEA European Economic Area EHIC European Health Insurance Card EMA European Medicines Agency EORI Economic Operators Registration and Identification EU European Union EU GDPR General Data Protection Regulation EUIPO European Union Intellectual Property Office Page | 3 EUTM European Union Trademark EUWA European Union (Withdrawal) Act 2018 FTA Free-trade agreement FTS Find a Tender GATS General Agreement on Trade in Services GATT General Agreement on Tariffs and Trade GBER General Block Exemption Regulation GDPR General Data Protection Regulation GHIC UK Global Health Insurance Card Government UK Government GPA Government Procurement Agreement HSE Health and Safety Executive HMRC HM Revenue and Customs ICO Information Commissioner’s Office IP Intellectual Property IPO Intellectual Property Office MAC Material adverse change MFN Most-Favoured Nation NEAFC North East Atlantic Fisheries Commission NES National Export System NI Protocol Northern Ireland Protocol NT National Treatment OJEU Official Journal of the European Union OR Only Representatives Patents Regulations Patents (Amendment) (EU Exit) Regulations 2019 Page | 4 PBS Points-Based Immigration System PSR Product-specific rules of origin RCD registered Community Design Registration, Evaluation, Authorisation and Restriction of Chemicals REACH (Regulation (EC) No 1907/2006) SCC Standard Contractual Clauses SGEI Services of General Economic Interest SIA Single Issuing Authority SIEF Substance Information Exchange Forum SPC Supplementary Protection Certificate TAC Total Allowable Catch TFEU The Treaty on the Functioning of the European Union Treaty The Treaty on European Union TRQ Tariff rate quotas TUPE Transfer of Undertakings (Protection of Employment) Regulations UCD unregistered Community Design UK United Kingdom UK GDPR United Kingdom General Data Protection Regulation VAT Value Added Tax VATA Value Added Tax Act 1994 WA Withdrawal Agreement WAA 2020 EU (Withdrawal Agreement) Act 2020 WIPO World Intellectual Property Organization WTO World Trade Organization Page | 5 STRUCTURE OF BREXIT Summary On the 24 December 2020, the UK announced a trade deal with the EU. The UK-EU concluded three agreements – the Trade and Cooperation Agreement; UK-EU Security of Classified Information Agreement; and UK-Euratom Nuclear Cooperation Agreement. All three still need to be approved by the European Parliament. Critically, the Withdrawal Agreement and Northern Ireland Protocol still apply. The agreements which form the Brexit deal do not provide for all aspects of the UK-EU trading relationship - unsurprising considering the speed at which the agreements were concluded. There remains outstanding questions surrounding substantial parts of the UK-EU trading relationship. Further reform is therefore expected and it remains to be seen how effectively the new agreements will be implemented within the UK. Contextual Background The United Kingdom voted to leave the European Union on the 23rd of June, 2016.