EU Exit Business Readiness Forum meeting on 21st March

Please find below summary notes from the EU Exit Business Readiness Forum meeting on 21^st March covering Digital & Data. BEIS summary, presentation and Q&A session are also attached for reference.

Panellists

• Donna Leong, Director of EU Exit Business and Stakeholder Engagement, BEIS
• Will Garnier, BEIS
• Abbie Gilligan, The Department for Digital, Culture, Media & Sport (DCMS)
• Dan Tor, DCMS
• Iona Shaw, DCMS
• Emma Green, Head of Cyber Security and Regulation, DCMS

The Department for Business, Energy and Industrial Strategy (BEIS) held their eighth EU Exit Business Readiness Forum on Thursday 21^st March at BEIS central London offices in Victoria, covering in this session potential changes in relation to Digital and Data in the event of a no-deal Brexit.

The forum was hosted by Donna Leong, Director of EU Exit Business and Stakeholder Engagement, BEIS, with panellists Will Garnier (BEIS), Abbie Gilligan (DCMS), Dan Tor (DCMS), Iona Shaw (DCMS) and Emma Green (DCMS).

The Forum, aimed primarily at representative organisations such as trade associations and professional bodies, has 3 main objectives - to share the information UK businesses need to prepare for EU Exit; to provide materials to association bodies to cascade to members; and to respond to and gather feedback on existing and new materials circulated in readiness for the UK’s withdrawal.

E-commerce directive – Will Garnier

The E-commerce Directive (ECD) applies to information society services (ISS) which are defined as services “usually provided for remuneration at a distance by electronic means at the individual request of a recipient.”

In practice, the directive covers most online services including on-line retailers, search tools and social media platforms

It does not cover certain gambling activities, tax, questions relating to practices governing cartel law, matters that are now covered by GDPR – nor does it cover legislation covering goods themselves such as safety, labelling requirements or delivery/transportation of goods.

The Country of Origin Principle, one of the key elements of the directive and core principle of the digital single market, means that ISS based in an EEA country can operate across the EEA whilst only having to adhere to certain rules that govern online activities in the country in which they (service provider) are established, such as those that fall within the directives co-ordinated field.

The directive defines the co-ordinated field as “covering relating to on-line activities such as on-line information, on-line advertising, on-line shopping and on-line contracting. It doesn’t contain requirements relating to goods themselves.

This reciprocal agreement is in place to reduce compliance burden on EEA based ISS making digital trade across EEA easier.

Other provisions incl. intermediary liability regime – 3 categories of ISS who have limited liability for illegal content:

• mere conduits or those who transmit information from 3^rd parties – ISP’s
• caching facilities who store information transmitted by others and
• hosting services who store information supplied by and at the request of individual recipients of the service- social media sites.

Liability of hosts is limited unless the service providers have actual knowledge of illegal content on platform. Once aware, intermediaries are required to act expeditiously to remove illegal content.

The ECD also prohibits use of general monitoring - ISS can’t be required to monitor for information on a general basis; and the use of prior authorisation or licensing schemes for providers based in EEA. It also introduced requirements for information an ISS must provide on their sites such as electronic contracts.

In the event that the UK leaves without a deal, continuity wherever possible will be applied, including liability of intermediaries and general monitoring. However the Country of Origin (COO) principle is the exception. When the UK leaves the EU, the UK will no longer benefit from this principle. UK based ISS engaged with EEA markets will no longer be exempt from the laws of those countries that fall within the directive’s co-ordinated field.

UK ISS will be required to adhere to rules governing online activities in each EEA state, potentially multiple regimes dependant on the nature of the ISS being provided and country provided in. As co-ordinated field is quire narrow, many services may already be compliant with requirements in the countries they are already in.

To help reduce the compliance burden on UK based companies, the UK government is removing the requirement that UK companies must adhere to relevant UK legislation when operating in the EEA to avoid compliance with 2 sets of requirements simultaneously. UK based ISS will have to apply UK rules when operating in the UK.

Companies will need to consider compliance issues that may arise for them following the loss of the COO principle; exact implications will depend on the nature of online service provided and the EEA country operating in.

They should also consider where the “place of establishment” is and whether this could be within the EEA for the purpose of the Directive. If providing more than one ISS this will have to be considered for each of the services provided, recitals within the directive set out guidance for “place of establishment” – it is not the place in which the technology supporting a website is located, or the place at which a website is accessible, but the place where the company pursues its economic activity.

Finally, businesses should consider whether they will be subject to prior authorisation schemes that are applied to third countries, which the UK will be on exit if the UK leaves without a deal.

Mobile data roaming – Dan Tor

Since 2015 mobile roaming has been available within the EU surcharge-free for calls texts and data. In addition, use of data over and above contract limits cannot exceed the financial cap for mobile data usage of 50Euro and customers must actively chose to spend in excess of this. Operators are required to send a notification once 80% and again when 100% of the 50Euro limit has been reached. Measures are also in place for operators (special tariffs) in border regions, to prevent “inadvertent roaming”. These rules are based on the new Roaming Regulation (EU) as part of single market access.

Whilst network operators Three, O2, EE and Vodafone have stated that they have no plans to reintroduce roaming surcharges within the EU, should the UK leave the EU without a deal EU operators will be able to increase roaming surcharges to UK network providers to use local EEA networks as this will no longer be regulated. Effectively surcharge free roaming will no longer be guaranteed.

Businesses and individuals are recommended to check with their network operator on any changes to roaming charges.

Any increased charges to network providers would be bourn entirely by UK network providers which could lead to increased charging or reduction in roaming services. In preparation for this government has passed legislation which enables UK mobile operators to continue to offer roaming services by removing the obligation for surcharge free roaming and introducing a cap on any additional roaming charges (to the customer) of £45 per month. Again, notifications will be given at 80% and 100% data usage with the onus on the customer to actively chose to spend more. Measures will also be put in place to cover “inadvertent roaming” as currently.

EU Domain names - Iona Shaw

Currently .eu domain names are able to be registered by organisations established within, persons resident in and undertakings having a registered office, central administration or principal place of business within the EEA.

In the event of a “no-deal” the UK will no longer be part of the EEA and organisations or undertakings established in the UK but not in the EU and individuals resident in the UK will no longer be eligible to register .eu domain names

Those who already hold a registered .eu domain name will not be eligible to renew these and will be contacted by EURid to notify that the domain name is no longer compliant with the current EU regulations. UK registrants will be allowed a grace period from exit day until 30^th May 2019 to allow for demonstration of compliance. Domain names will remain active during this time. If compliance cannot be proven the domain name will be withdrawn on 30^th May, however these will not be made available to any other organisation, undertaking or individual for 10 months (30^th March 2020). This is to enable any UK registrants to reactivate their .eu domain name on the condition that eligibility criteria is met. After this period, and if eligibility criteria have not been met, the domain will be revoked and made freely available.

It may still be possible to meet eligibility criteria if the registered office, principle place of business or central administration is established within the EEA, or if a person is resident in the EEA.

New EU regulations concerning the.eu domain are expected in April 2019 that will expand the eligibility criteria to allow EEA citizens to register a .eu domain name regardless of place of residence.

Under current legislation, EEA citizens would not be eligible to register a .eu domain name however the new regulations may enable this.

The NIS Directive - Emma Green

Implemented into UK law in May 2018 the Network and Information Systems Directive (NIS) provides measures to improve the resilience of network & information systems in the UK.

UK Digital Service Providers (DSP’s) are most likely to be affected by UK Exit. Currently UK DSP’s are required to register with the Information Commissioners Office (ICO); have appropriate and proportionate security measures are in place to manage risks; and that incidents are notified to the ICO where these have a substantial impact on the provision of any services.

Those classed as DSP’s includes online marketplaces, online search engines and cloud computing services.

Changes are being made to the information sharing obligations under the Directive currently to enable new powers to be put in place to share information between agencies including the NCSC and EEA states.

Should the UK leave the EU without a deal, digital service providers who are based in the UK and offer services to the EU will be required to register and have a representative in an EU member state. Only one representative is required in the EU regardless of whether services are offered in multiple member states.

This impacts DSP’s that:

• have 50 or more staff, or a turnover of or a balance sheet total of more than 10 million Euro per year; and
• has its main establishment in the UK; and
• offers services in the EU

Digital service providers with less than 50 staff and turnover or balance sheet total of less than 10 m Euro are exempt from the NIS Directive.

Updated information and useful links

The government is regularly updating a range of information in order to help businesses prepare for the UK leaving the EU. Below is a selection of information which has been recently added or updated.

NEW - Latest Position on the EU Exit Timetable

The UK Government has now agreed at the March European Council an extension to Article 50. As a matter of international law, the UK will continue to be a member of the EU until 11pm on 12 April (UK time), irrespective of any Parliamentary vote. The Government will bring forward proposals for a third meaningful vote as soon as possible and, if it is passed, the date of our departure would be extended to 22 May to provide the time to pass the necessary legislation. If Parliament does not agree a deal this week, the EU Council have agreed to extend Article 50 until 12 April. At this point we would either leave with no deal or put forward an alternative plan. If this involved a further extension, it would mean participation in the European Parliamentary Elections.

Tools & Resources

NEW - BEIS Leaving the EU: Advice for SMEs

BEIS has recently published a leaflet, see attached, with information to help small businesses prepare their business for when the UK leaves the EU.

Providing services to EEA and EFTA countries after EU Exit - Guidance for UK businesses on EU service provision if the UK leaves the EU with no deal.

If the UK leaves the EU on 29 March 2019 with no deal, UK businesses will no longer operate under European Economic Area (EEA) regulations for the cross-border trade of services. Updates – Additional country guides were published this week that contain information and links to help businesses navigate the third country regulations in each country. The updated list is here: Providing Services to EEA and EFTA Countries after EU Exit

NEW - Healthcare advice for UK travellers in the event of a no deal EU Exit

Access to healthcare in the EU for UK nationals is likely to change in a no deal scenario. The Government has published updated advice on the continuity of reciprocal healthcare arrangements in the event that the UK exits the EU without a deal. All UK nationals who are planning to reside in, travel to, work or study in the EU or European Free Trade Area (EFTA) states (Iceland, Norway, Liechtenstein and Switzerland) are strongly advised to check the latest country-specific guidance on GOV.UK and NHS.UK about healthcare arrangements if the UK leaves the EU without a deal.

NEW - HMRC Webinar

HMRC recently ran a live webinar to help UK businesses trading with the EU to keep imports and exports up to speed in case of a no deal EU Exit. The recording of the live webinar session held on the 22 Mar 2019 is now available online to view.

This webinar talks about 5 key areas UK businesses need to know: from how to register for an Economic Operator and Identification (EORI) number and Transitional Simplified Procedures (TSP), to preparing to make customs declarations, what Entry Summary Declarations (also known as safety and security declarations) are, and paying the correct import and export duty and VAT.

As guidance is updated frequently, we recommend you check regularly on https://www.gov.uk/euexit or read the EU Exit partnership pack on GOV.UK.

Don’t delay taking the key steps to preparing your business. If the UK leaves the EU without a deal, to continue trading goods with the EU your business needs to:

• Register for an EORI number
• Decide how you are going to make customs declarations. Many businesses find it simpler to appoint a customs agent to manage the process for them. If you want to make declarations through a customs agent appoint one as soon as possible. If you can’t appoint an agent or don’t think this is right for your business and if you intend to import or export regularly, make sure someone in your business is trained to make customs declarations and buy specialist software that links to HMRC’s customs systems.
• If you’re an importer register for Transitional Simplified Procedure (TSP). You’ll be able to transport your goods into the UK without making a full customs declaration at the border, and will be able to delay paying your import duties.

NEW - DIT Tariff Videos

DIT have created three informative videos to answer queries on tariffs

• Tariffs: what happens if we leave the EU with no deal?
• What is a Tariff Rate Quota?
• What is a tariff?

Importing and Exporting

DIT updated guidance on checking temporary rates of customs duty on imports after EU Exit. Updates – Added information about Northern Ireland: Check Temporary Rates of Customs Duty on Imports after EU Exit

HMRC updated guidance on how to get a UK EORI number to trade within the EU. Updates - Once you have your UK EORI number it can take 48 hours before you can use it to make declarations using the Customs Handling of Import and Export Freight (CHIEF) system: Get a UK EORI Number to Trade Within the EU

Cross Government update of guidance on the transport of goods out of the UK by road if the UK leaves the EU without a deal: checklist for hauliers. Updates – confirm you can continue to use your EU Community Licence until 31 December 2019 if the UK leaves the EU without a deal, and that you would need an ECMT permit to transport goods through EU or EEA countries to non-EU or non-EEA countries who are ECMT members: Transport Goods out of the UK by Road if the UK Leaves the EU Without a Deal

Cross government guidance updated on export food, drink and agricultural products. Updates - These publications with EU Exit information: Application for Export Services at Concessionary Rates, Export of potatoes to non-EC countries, Inspection application form / Consignment note, Phytosanitary Certification of Grain for Export: Export Food and Agricultural Products Special Rules

DVSA updated guidance on ECMT international road haulage permits. Updates - Confirm you can continue to use your EU Community Licence until 31 December 2019 if the UK leaves the EU without a deal, and that you would need an ECMT permit to transport goods through EU or EEA countries to non-EU or EEA countries who are ECMT members. Added information about how to apply for short-term ECMT permits for April 2019.: ECMT International Road Haulage Permits

NEW – HMRC published guidance on making declarations using Transitional Simplified Procedures: Making Declarations Using Transitional Simplified Procedures

NEW – HMRC outlines extension of Transitional Simplified Procedures: HMRC Outlines Extension of Transitional Simplified Procedures

NEW – HMRC published a communications pack for Import VAT on parcels in the event of a no deal EU exit: Communications Pack Import VAT on Parcels in the Event of a No Deal EU Exit

NEW – HMRC published guidance on bringing merchandise from or to the UK in baggage or small motor vehicle, if the UK leaves the EU without a deal: Bringing Merchandise from or to the UK in Baggage if the UK Leaves the EU Without a Deal

NEW – HMRC published guidance on VAT IT system changes for businesses outside the UK if the UK leaves the EU with no deal: VAT IT System Changes for Businesses Outside the UK if the UK Leaves the EU With No Deal

Regulations and Standards

NEW – BEIS have published guidance on the legislative regime on product safety and metrology in a no deal scenario: UK Product Safety and Metrology Guidance in a 'no deal' scenario

NEW – BEIS published guidance on placing manufactured goods on the EU internal market if there's no deal: Placing Manufactured Goods on the EU Internal Market if there is No Brexit Deal

NEW – BEIS published guidance on placing manufactured goods on the UK market if there’s no Brexit deal: Placing Manufactured Goods on the UK Market if there is No Brexit Deal

NEW – BEIS published guidance on the status of conformity assessment bodies after Brexit: Status of Conformity Assessment Bodies after Brexit

DfT updated guidance on international road haulage: operator licences and permits. Updates - Confirm you can continue to use your EU Community Licence until 31 December 2019 if the UK leaves the EU without a deal, and that you would need an ECMT permit to transport goods through EU or EEA countries to non-EU or EEA countries who are ECMT members: International Authorisations and Permits for Road Haulage

FCO updated information on UK sanctions regimes if there’s no Brexit deal. Updates - Added regime page for UK counter-terrorism sanctions. Regulations have been added for the Republic of Belarus and Zimbabwe: UK Sanctions Regimes if there is No Brexit Deal

MHRA updated guidance and publications on a possible no deal scenario. Updates - Added links to new guidance covering licensing of biological products, marketing authorisations, centrally authorised products, Parallel Distribution Notices, Reference Medicinal Products, pharmacovigilance, new assessment routes, clinical trials and other information about medicines and medicinal products licensing. New no deal guidance has been added to the page on procedures for UK-PIPs & medicines packaging: MHRA Guidance and Publications on a Possible No Deal Scenario

Workforce and People

FCO updated guidance on foreign travel insurance. Updates - Information on the use of European Health Insurance cards (EHIC) in the event of a no deal added to the EU Exit update section. Added information on financial protection of package holidays: Foreign Travel Insurance

NEW - Home Office launches nationwide campaign for EU Settlement Scheme: Home Office Launches Nationwide Campaign for EU Settlement Scheme

FCO updated guidance on foreign travel insurance. Updates - Information on the use of European Health Insurance cards (EHIC) in the event of a no deal added to the EU Exit update section. Added information on financial protection of package holidays: Foreign Travel Insurance

NEW - HO published guidance on the EU Settlement Scheme: evidence of relationship to an EU citizen: EU Settlement Scheme Evidence of Relationship to an EU Citizen

HO updated guidance on the EU Settlement Scheme, ID document scanner locations. Updates - Locations in Ealing, Livingstone, Maidenhead, Hereford, Liverpool, Slough and Worcester added: EU Settlement Scheme ID Document Scanner Locations

Intellectual Property

NEW - Cross government guidance published on changes to design and trade mark law if the UK leaves the EU without a deal: Changes to Design and Trade Mark Law if the UK Leaves the EU Without a Deal

IPO updated guidance on changes to trade mark law if the UK leaves the EU without a deal. Updates - Additional paragraphs added to section 6 with a link added to the EU Trade Mark Register TMview: Changes to Trade Mark Law if the UK Leaves the EU Without a Deal

IPO updated guidance on IP and Brexit: the facts. Updates - Design guidance added under the heading Statutory legislation: IP and Brexit the Facts

EU & UK Funding

NEW – HMT published guidance on the European Investment Bank Group financing if there’s no Brexit deal: European Investment Bank Group Financing if there is No Brexit Deal

BEIS updated guidance on European Regional Development Funding (ERDF) if there’s no Brexit deal. Updates – to make clear that existing fund delivery bodies will continue to perform the same roles as they do now: European Regional Development Funding if there is No Brexit Deal

BEIS updated guidance on European Social Fund (ESF) grants if there’s no Brexit deal. Updates – to make clear that existing fund delivery bodies will continue to perform the same roles as they do now: European Social Fund ESF Grants if there is No Brexit Deal

Public Procurement

CO updated guidance on public-sector procurement after a no-deal Brexit. Updates – Changed 29 March to 11 April 2019: Public Sector Procurement after a No Deal Brexit

Organisational Compliance

NEW – HMT published guidance on changes to deduction of tax on interest, royalties and dividends if the UK leaves the EU without a deal: Deduction of Tax on Interest Royalties and Dividends if the UK Leaves the EU Without a Deal

CMA updated guidance on information for businesses on the CMA's role after Brexit. Updates - Added to collection new guidance to explain how EU Exit will affect the powers and processes of the CMA as well as a new consultation on CA98 penalties: CMAs Role after Brexit

Other

NEW - Cross government announcement on continued EU access for UK airlines, hauliers and bus and coach operators agreed: Continued EU Access for UK Airlines Hauliers and Bus & Coach Operators Agreed

DExEU updated guidance on International Agreements if the UK leaves the EU without a deal. Updates – made to the following agreements: UK-Switzerland Agreement on Direct Insurance other than Life Insurance and Decision, Agreement on Government Procurement, Australia MRA, Pacific Economic Partnership Agreement, Norway Road Transport Agreement, Jordan Air Services Arrangement and United States Air Safety Arrangement: International Agreements if the UK Leaves the EU Without a Deal

DfT updated guidance on preparing to drive in the EU after Brexit. Updates – Clarification that if you are travelling in the EU and EEA with a UK registered caravan or trailer, you will need two Green Cards: one for the towing vehicle, and one for the caravan or trailer: Prepare to Drive in the EU after Brexit

Triage Tool

Gov.uk has an online tool to help businesses prepare for the UK leaving the EU. Businesses can use the Triage Tool to find out:

• what their business may need to do to prepare for the UK leaving the EU
• what’s changing in their sector
• information on specific rules and regulations

Businesses will need to answer 7 simple questions to get guidance relevant to their business.

BEIS Sector Primers

These sector primers aim to bring together on one webpage the top 3 – 5 issues for each sector and provide guidance. The primers link through to more detailed material elsewhere on gov.uk. A final batch have now been published, please could you pass on to stakeholders and ask them to cascade through their networks. The sectors covered are:

• Chemicals: https://www.gov.uk/guidance/the-chemicals-sector-and-preparing-for-eu-exit
• Construction and Housing: https://www.gov.uk/guidance/the-construction-sector-and-preparing-for-eu-exit
• Consumer Goods: https://www.gov.uk/guidance/the-consumer-goods-sector-and-preparing-for-eu-exit
• Electricity incl. Renewables: https://www.gov.uk/guidance/the-electricity-sector-and-preparing-for-eu-exit
• Electronics, Machinery & Parts: https://www.gov.uk/guidance/the-electronics-machinery-and-parts-sector-and-preparing-for-eu-exit
• Parcel Delivery Services: https://www.gov.uk/guidance/parcel-delivery-services-and-preparing-for-eu-exit
• Professional & Business Services.: https://www.gov.uk/guidance/the-professional-and-business-services-sector-and-preparing-for-eu-exit
• Research & Innovation: https://www.gov.uk/guidance/the-science-research-and-innovation-sector-and-preparing-for-a-no-deal-eu-exit
• Retail: https://www.gov.uk/guidance/the-retail-sector-and-preparing-for-eu-exit

Association members can find further information on preparations for a potential “no-deal” Brexit including links to relevant documents and sources on .Gov/ HMRC platforms, information on importing, exporting and transporting goods, trading goods covered by the “New Approach” framework (CE marking directives), trading timber products and chemicals www.fira.co.uk/news/article/guidance-for-industry-leaving-the-eu-without-a-deal

This document will be updated on a regular basis as information is confirmed and released.

Links to: