Corporate Legal Executive,
It has been over a year since the UK and the EU entered into the revised Withdrawal Agreement (WA) – which sets out the terms of the UK’s exit from the EU.
Now, a year on, and time is of the essence. If you are a business owner, it is imperative that you prepare for the changes that will follow the EU transition on 1 January 2021. Below is a non-exhaustive list of the procedures that will change from 1 January and some, if not all, of these are likely to affect how your business operates:
- Exporting goods to the EU and importing goods from the EU;
- Exchanging personal data with EU businesses and processing personal data from the EU; and
- Using or relying on intellectual property (IP) protection.
Exporting and importing goods to the EU
The rules for exporting and importing some types of goods, including alcohol, tobacco and oil, will change, and it is extremely important that you check the following:
- What export licences/certificates are needed;
- If any of the marking, labelling and marketing standards needs to be changed;
- The rules for exporting alcohol, tobacco and certain oils; and
- If you have an EORI number that starts with GB.
There are changes to tax on exporting goods – and you could be eligible to charge customers 0% VAT. The current common tariff will be replaced, so you will need to check what tariffs apply if your business imports goods.
There are also new rules for custom declarations on importing goods. These new rules can be complicated – so it is advisable to undertake training or use a third party to act on your behalf. If you neglect to follow these new rules, your goods may not get through customs -which will result in a disruption to your supply chain.
Most declarations are submitted electronically, and you will need to apply for access to the Customs Handling of Import and Export Freight (CHIEF). Declarations are either a full or simplified declaration (with the relevant authorisation). Before getting authorisation for the simplified declaration, you will need to check whether the goods your business imports are eligible.
Exchanging or processing personal data with EU businesses
General Data Protection Regulations (GDPR) will remain and the Information Commission Office (ICO) will continue to have the power to fine or place bans on companies for any misuse or breaches of data. If you have any contracts and/or arrangements with EU businesses – you need to ensure that the flow of any personal data is lawful. As a result, contracts may need to be reviewed and amended with suitable safeguard mechanisms.
If you own a small to medium business, the most common safeguards are Standard Contractual Clauses (SCCs). However, if you own a larger business, the SCCs may not be suitable. The Information Commission Office (ICO) has provided more detailed information and guidance at https://ico.org.uk/for-organisations/data-protection-at-the-end-of-the-transition-period/.
The Intellectual Property Office (IPO) will create a comparable UK trade mark for every registered EU trade mark (EUTM) and will also create comparable registered designs for every registered community design (RCD). If you have any pending applications for EUTMs or RCDs, there will be a nine-month period after 1 January to apply in the UK for the same protection (with fees payable). The IPO provides more detailed information at https://www.gov.uk/guidance/eu-trademark-protection-and-comparable-uk-trademarks.
If you have a UK trade mark, you can no longer be represented by UK lawyers on new applications and/or new proceedings at the EU Intellectual Property Office (EUIPO). Instead, you will need to appoint an EU lawyer to represent you on any applications and/or proceedings before the EUIPO. However, the Withdrawal Agreement (WA) ensures that if you have any ongoing cases, your UK lawyer can still continue to represent you before the EUIPO.
If you are in the business of parallel trade (import and export of IP-protected goods) you may need to obtain permission from the IP rights holder to continue after 1 January. The IP rights holder may refuse permission and this could have huge implications on your business arrangements and supply chains.
The proverb “forewarned is forearmed” could not be more apt for businesses preparing for 1 January. The above changes are fast approaching, and we strongly recommend that you seek professional advice. You can also complete the questionnaire on https://www.gov.uk/transition, and once completed, there is follow-up comprehensive guidance to help you with the next steps for readiness.
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: