Implications of the EU-UK Trade Agreement on UK Financial Services

As expected, the market access to the EU for UK financial services firms has changed post-Brexit. The implications of the Trade and Cooperation Agreement (“Agreement“) for financial services are more severe than for example trade, and the effects come close to that of a hard Brexit.

Andreas Fillmann explores what this means for UK Financial Services looking at equivalence decisions, general rules under the agreement, the prudent carve-out and the Joint Declaration on Financial Services Regulatory Cooperation in this article.

UK Freeports – Q&A published

Back in November 2020, the UK government published the Freeports Bidding Prospectus, formally opening the bidding process to establish what it hopes will be at least seven new Freeports across England. You can read our analysis of the tax reliefs contained in the Prospectus, here: Freeports in England: The Tax Offering.

As part of the bidding process, the government invited stakeholders and potential bidders to submit questions, requesting clarification on any part of the Bidding Prospectus. On 18 January 2021, the government published a Freeports Clarification Q&A document that provides responses on some of the key questions and themes they received.

 The Q&A document covers most of the sections covered in the Bidding Prospectus. These include, general policy and objectives, the assessment process and timing, geographical constraints, the customs site as well as questions raised that concerning regeneration, planning, innovation, governance and security. In relation to the tax site, the document considers several key questions relating to the number, size and shape of tax sites, the meaning of “underdeveloped”, and the eligibility requirements for the tax incentives and reliefs.

Brexit Transition of EU Trademarks and Designs Accomplished

Brexit Tearing of FlagsWith the end of the transition period on 31 December 2020, the EU legislation governing the EU trademark and design system ceased to apply to the UK. While Brexit trade deal talks were in full swing, the SPB Team worked through all administrative details to comply with the new Brexit requirements, which took effect on 1 January 2021.

Reinhart Lange, Kerry Lee and Dr Sandra Mueller look at what this means in practice

New Trade Deal

Brexit Jigsaw

On 24 December 2020, after intensive negotiations, the EU Commission reached a preliminary agreement with the UK on the terms of its future cooperation with the EU. The result of nine months of negotiations is a 1,246-page trade and cooperation agreement. The preliminary agreement consists of three parts, as outlined in detail in a press release as follows:

  • A free trade agreement – a new economic and social partnership with the UK
    • The agreement covers not just trade in goods and services, but also a broad range of other areas in the EU’s interest, such as investment, competition, state aid, tax transparency, air and road transport, energy and sustainability, fisheries, data protection, and social security coordination.
    • It provides for zero tariffs and zero quotas on all goods that comply with the appropriate rules of origin.
    • Both parties have committed to ensuring a robust level playing field by maintaining high levels of protection in areas such as environmental protection, the fight against climate change and carbon pricing, social and labour rights, tax transparency and state aid, with effective, domestic enforcement, a binding dispute settlement mechanism and the possibility for both parties to take remedial measures.
    • The EU and the UK agreed on a new framework for the joint management of fish stocks in EU and UK waters. The UK will be able to further develop British fishing activities, while the activities and livelihoods of European fishing communities will be safeguarded, and natural resources preserved.
    • On transport, the agreement provides for continued and sustainable air, road, rail and maritime connectivity, though market access falls below what the Single Market offers. It includes provisions to ensure that competition between EU and UK operators takes place on a level playing field so that passenger rights, workers’ rights and transport safety are not undermined.
    • On energy, the agreement provides a new model for trading and interconnectivity, with guarantees for open and fair competition, including on safety standards for offshore, and production of renewable energy.
    • On social security coordination, the agreement aims at ensuring a number of rights of EU citizens and UK nationals. This concerns EU citizens working in, travelling or moving to the UK and to UK nationals working in, travelling or moving to the EU after 1 January 2021.
    • Finally, the agreement enables the UK’s continued participation in a number of flagship EU programmes for the period from 2021 to 2027 (subject to a financial contribution by the UK to the EU budget), such as Horizon Europe.
  • A new partnership for our citizens’ security
    • The trade and cooperation agreement establishes a new framework for law enforcement and judicial cooperation in criminal and civil law matters. It recognises the need for strong cooperation between national police and judicial authorities, in particular for fighting and prosecuting cross-border crime and terrorism. It builds new operational capabilities, taking account of the fact that the UK, as a non-EU member outside of the Schengen area, will not have the same facilities as before. The security cooperation can be suspended in case of violations by the UK of its commitment for continued adherence to the European Convention of Human Rights and its domestic enforcement.
  • A horizontal agreement on governance –a framework that stands the test of time
    • To give maximum legal certainty to businesses, consumers and citizens, a dedicated chapter on governance provides clarity on how the agreement will be operated and controlled. It also establishes a Joint Partnership Council, which will make sure the agreement is properly applied and interpreted, and in which all arising issues will be discussed.
    • Binding enforcement and dispute settlement mechanisms will ensure that rights of businesses, consumers and individuals are respected. This means that businesses in the EU and the UK compete on a level playing field and will avoid either party using its regulatory autonomy to grant unfair subsidies or distort competition.
    • Both parties can engage in cross-sector retaliation in case of violations of the agreement. This cross-sector retaliation applies to all areas of the economic partnership.

In the view of the EU Commission, the entry into application of the trade and cooperation agreement is a matter of special urgency because the UK has extensive links with the EU and if there is no applicable framework regulating the relations between the EU and the UK after 31 December 2020, those relations will be significantly disrupted, to the detriment of individuals, businesses and other stakeholders. The late agreement, shortly before the end of the transition period on 31 December 2020, is not intended to jeopardise the right of the EU Parliament to exercise its democratic control under the EU Treaties. Due to the exceptional circumstances, the EU Commission has proposed to apply the agreement provisionally and until 28 February 2021. It has submitted to the EU Council decisions on the signing and provisional application on the conclusion. Once the EU Council has given its unanimous consent, the agreement can be formally signed. The EU Parliament must then give its approval. Finally, the EU Council must adopt the decision to conclude the agreement.

Further, there are various proposals for EU Council decisions on the signing, on behalf of the EU, and on provisional application of the trade and cooperation agreement between the EU and the EU Atomic Energy Community, of the one part, and the UK, of the other part, and of the agreement between the EU and the UK concerning security procedures for exchanging and protecting classified information, which the EU Commission submitted to the EU Council. One of the proposals for an EU Council decision (Annex 3) includes a Joint Declaration on Regulatory Cooperation in Financial Services:

JOINT DECLARATION ON FINANCIAL SERVICES REGULATORY COOPERATION BETWEEN THE EUROPEAN UNION AND THE UNITED KINGDOM

  1. The Union and United Kingdom agree to establish structured regulatory cooperation on financial services, with the aim of establishing a durable and stable relationship between autonomous jurisdictions. Based on a shared commitment to preserve financial stability, market integrity, and the protection of investors and consumers, these arrangements will allow for: – bilateral exchanges of views and analysis relating to regulatory initiatives and other issues of interest; – transparency and appropriate dialogue in the process of adoption, suspension and withdrawal of equivalence decisions; and – enhanced cooperation and coordination including in international bodies as appropriate.
  2. Both Parties will, by March 2021, agree a Memorandum of Understanding establishing the framework for this cooperation. The Parties will discuss, inter alia, how to move forward on both sides with equivalence determinations between the Union and United Kingdom, without prejudice to the unilateral and autonomous decision-making process of each side.”

Consequently, the EU and the UK initially agreed to cooperate in a structured way in the area of financial services in order to establish a solid future relationship.

Brexit Stocktake – Where Are We? How Did We Get Here? What Happens Next?

Brexit CountdownJoin me on Monday 14th December when I will be in conversation with Paul Adamson, chairman of Forum Europe, editor of the online magazine Encompass and founder of the EU-UK Forum. He has been a prominent member of the Brussels policy community in a variety of guises for most of the UK’s period of membership of the EU.

We will be discussing the developments from over the weekend and what happens next.

Register here

Freeports in England – The Tax Offering

On Monday 16 November 2020, the UK government published the Freeports Bidding Prospectus, formally opening the bidding process to establish what it hopes will be at least seven new Freeports across England. The devolved administrations will oversee their own bidding process for creating new Freeports in Scotland, Wales and Northern Ireland. Here we look at the six key tax reliefs in more depth.

 

Business Viability and Brexit

Question MarksThe UK will leave the EU single market, Customs Union, and VAT and excise duty area on 31 December. From 1 January 2021, the UK will operate its own external border as a sovereign nation. Is your business ready for the looming deadline of Brexit?  Dealing with Brexit and the ongoing uncertainties about the COVID-19 pandemic, mean businesses and owners are in for a tough ride over the next few months, possibly much longer if the UK continues to face restrictions and possible additional tariffs, supply challenges and economic uncertainty due to Brexit.

Business owners need to make difficult decisions about the future viability of their businesses, which is not easy in the current environment. Those decisions need to be taken carefully in light of directors’ duties to act in the best interest of the company and its creditors as a whole. Directors may decide that there is no longer a viable business and retaining employees, taking on further debt or even continuing the business may no longer be in the company’s best interests. If directors do not act in the best interests of the company and, in particular, its creditors, there is increased risk of personal liability for directors if the financial position of the company deteriorates.

Our brochure contains a number of guides to help navigate these difficult decisions, but the key for all directors is to act now and take advice to minimise the risk of personal liability.

Preparing For Data Privacy Compliance Post Brexit Transition

This is a brexit imageWith still no Withdrawal Agreement in place and eight weeks until the transition period ends, businesses should be planning now to ensure the continuity of EEA-UK data flows. Identifying affected intra-group, customer and vendor arrangements and preparing priority action plans is a crucial first step.

Our guide prepared by Francesca Fellowes, Andrea Ward and Asel Ibraimova provides a checklist, due diligence questions and practical advice to help you navigate the process.

The Impact of Brexit on Contracts

Brexit JigsawBrexit threatens to have a significant impact on all UK businesses when they are importing and exporting goods and services from suppliers in the EU, as well as EU businesses when they are exporting goods and services to the UK.

As such, all businesses (particularly manufacturers and retailers) need to consider the impact of Brexit both as a buyer of goods and services from suppliers in the EU and when they are selling goods and services to customers in the EU.

Our Intellectual Property & Technology Partner, Simon Jones, provides this helpful report detailing important considerations for your business as we approach the Brexit deadline.

Why Data May Prove One of The Hardest Parts of Brexit

Listen to PodcastPersonal data and its transfer over international boundaries hit the news in July 2020, yet again, as the Court of Justice of the EU (CJEU) handed down the Schrems II decision on data transfers reaffirming its strong backing for data protection rights.  In October, a CJEU ruling on UK (as well as French and Belgian) government surveillance regimes further shaped how policy-makers need to evaluate data protection arrangements.  Now Brexit is on the horizon and the international transfer issues surrounding the UK’s exit are becoming a pressing concern for many organisations.

But it remains unclear whether personal data transfers from the EEA to the UK will be able to continue as seamlessly as now post the Brexit transition period without additional measures. Unless the European Commission passes an “adequacy decision” in relation to the UK before 31 December 2020 (or some other form of agreement is reached), then EU/EEA organisations that transfer personal data to UK organisations (or allow them to access the data) will breach the GDPR unless they put additional alternative measures in place to govern those transfers, or a derogation applies. The Commission’s freedom of manoeuvre is constrained by the two CJEU rulings earlier this year.

For any organisation doing business across the Brexit border, there may be significant work to be done to ensure that those data transfers can continue without breaching the GDPR, such as putting EU Standard Contractual Clauses (SCCs) or Binding Corporate Rules into place.

I was recently joined by Neil Ross, Policy Manager for Digital Economy at techUK and Rosa Barcelo, co-chair of our global Data Privacy & Cybersecurity Practice and former Deputy Head of Unit of the Cybersecurity and Digital Privacy Unit of DG CONNECT in the European Commission to explore these issues on our Now & Next podcast

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