Written by:
Karina James-Wiltshire,
Corporate Legal Executive,
Ince (Cardiff)
The EU transition ended at 11PM on 31 December 2020, and from 1 January 2021, the long-awaited UK-EU Trade and Cooperation Agreement (TCA) now applies.
This comprehensive agreement is over 1200 pages long, and is divided into seven parts, covering: trade in goods and services, digital trade, intellectual property, public procurement, aviation and road transport, energy, fisheries, social security coordination and law enforcement.
Reflecting on our previous article published prior to the agreement, this article will summarise and focus on some of the key provisions for business owners that are found in Part Two of the TCA.
Exporting and importing goods
The ‘Trade in Goods’ (in Title I of Part Two of the TCA) section states the aims to maintain free trade between the UK and EU. The TCA allows for zero tariffs and zero quotas on all goods originating in either the UK or EU. However, this prohibition is subject to the new ‘rules of origin’ requirements. These provisions require proof of where a product was made together with additional administrative burdens.
A proof of origin can take the form of either:
- A statement of origin completed by the exporter on a commercial invoice or other commercial document that describes the goods, or;
- Supporting documents and records held by the importer “importers knowledge” of the goods originating status.
If you are unable to provide the relevant documentation to satisfy the rules of origin you will not be able to claim the preferential tariffs. For more detailed information, read here.
Exchanging or processing personal data
The provisions for data protection (in Digital Trade Title III of Part Two of the TCA) states the aims to facilitate digital trade, to address unjustified barriers to trade enabled by electronic means and ensure an open, secure and trustworthy online environment for businesses and consumers.
There are provisions for contracts to be validly concluded and take legal effect electronically, with some of the exceptions being:
- Legal representation services;
- Contracts requiring witnesses;
- Contracts requiring involvement of courts, and;
- Contracts transferring real estate.
The TCA does not address the EU's adequacy decision in relation to the UK's data protection regime. We are still waiting for whether the EU will give a positive adequacy decision as the UK is no longer an EU Member but recognised now as a third country. However, the TCA does provide that for a maximum of six months, data flows from the EU to the UK will not be considered as transfers to a third country.
Intellectual Property (IP)
The provisions for Intellectual Property (IP) (in Title V of Part Two of the TCA) outlines the aims to facilitate the production, provision and commercialisation of innovative and creative products and services between the UK and EU, while ensuring an adequate and effective level of protection and enforcement of intellectual property rights.
In terms of protecting IP, the TCA states that both the UK and the EU shall not treat the others nationals less favourably. The TCA has set up the Trade Specialised Committee (TSC) on IP; and this committee addresses all matters under Title V. Through the TSC, both the UK and the EU will co-operate on their commitments and obligations under Title V.
If you have a pending application for an EU trade mark (EUTM), you can apply to register the same trade mark as a UK right up to and including 30 September 2021. You will retain the earlier filing date of the pending EUTM and can claim any valid international priority you had on the pending application. For more detailed information, click here.
What do business owners need to do before the TCA is put in place?
The final negotiations of the TCA were late and as a result, the TCA is currently considered as a provisional agreement until 28 February 2021. Once this date has passed, the TCA between the UK and EU will be formally signed. Therefore, it is prudent for business owners to ensure that they are familiar with the provisions that effect their businesses directly.
I have already covered some of the key areas in part two of the agreement – but if your business deals with aviation, road transport, energy or fisheries in particular, you should seek professional advice to ascertain what changes you may need to make to your business arrangements.
The information above is not and should not be taken to be legal advice. You should not take action or omit to take action based on this information.
If you require any help on the issues raised above, our colleagues would be delighted to help you with any queries:
Please email:
Karina James-Wiltshire, Corporate Legal Executive, at KarinaJames-Wiltshire@incegdcom; or
Theresa Grech, Partner and Head of Corporate, at [email protected].
