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Clifford Chance

Briefings

Briefings

Here is a selection of our latest publications on the implications of Brexit and what it might mean for the UK's ongoing relationship with the EU.

07 July 2021

Merger control in a post-Brexit world: is the CMA up to the task?

The UK's Competition and Markets Authority has been preparing itself for an increased merger control caseload in the wake of Brexit. In discussing the CMA's recent practice and guidance on jurisdiction, procedure, substantive assessment and remedies, Alex Nourry, Chandralekha Ghosh and Jordan Bernstein highlight key points of change in approach, particularly with regards to multi-jurisdictional mergers and digital markets. The article considers the sustainability of the CMA's approach and its potential impact on mergers.

This article was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ in the European Competition Law Review as "Merger control in a post-Brexit world: is the CMA up to the task?" in [E.C.L.R. 2021, 42(7) 371-382] and is reproduced by agreement with the publishers.

11 May 2021

Beyond Brexit: EU vs UK Margin Rules for OTC Derivatives

EU and UK margin rules for OTC derivatives will remain closely aligned after the end of the Brexit transition period – but some differences will remain.

The EU Regulatory Technical Standards (RTS) on margin were ‘onshored’ in the UK from the end of the Brexit transition period with limited changes to reflect the UK’s status outside the EU. The PRA and FCA are consulting on amendments to align elements of the UK Margin RTS with changes made to the EU Margin RTS following the end of the Brexit transition period. However, the end of the Brexit transition period still means some changes for both EU and UK counterparties under:

  • the EU Margin RTS as a result of the UK becoming a third country for the purposes of EU law; and
  • the UK Margin RTS as a result of the onshoring amendments, albeit mitigated by transitional relief until 31 March 2022.

The International Swaps and Derivatives Association (ISDA) and Clifford Chance have prepared this briefing highlighting some key changes and differences that will remain between the EU and the UK Margin RTS.

30 April 2021

How English judgments will be enforced in the EU post Brexit

There is a prevalence in international agreements of parties electing to resolve their disputes before the English courts.

It is therefore unsurprising that of the many questions that clients have to face in the aftermath of Brexit, one of the most common is whether their English judgment will continue to have the same value in Europe and how will they enforce it?

For the reasons further explained, clients can rest easy that in practice English law and the decisions of the English courts will still be upheld, albeit using different routes.

08 March 2021

Beyond the Brexit transition period – new deadlines for firms

The EU, a few Member States and the UK have established some temporary transitional arrangements for financial services to mitigate some of the immediate impact of the ending of the Brexit transition period on firms and markets. Clifford Chance has prepared a paper highlighting some of the deadlines created by those temporary arrangements to illustrate where firms may need to take action to meet the deadline or to address the consequences of the expiry of a relevant regime.

03 February 2021

Spain introduces Post-Brexit rules for UK Financial Firms

The Spanish government has published a new Royal Decree-Law aiming at protecting the interests of citizens and businesses who may be affected by the end of the transitional period on 31 December 2020 and the UK becoming a third country for all purposes as of 1 January 2021. Among the measures included are some specifically related to the financial sector and financial entities that have been put in place in order to strengthen legal certainty and customer protection and to avoid any risk to financial stability.

28 January 2021

Employee Incentives and Brexit: An update

Many companies have asked us over the last 18 months about what Brexit would mean for their employee incentives and share plans. Now that the EU/UK Trade and Co-operation Agreement has been agreed, it's a good time to take stock, and it should be good news for the vast majority of companies as far as incentives are concerned.

Broadly speaking, there is little immediate change to the operation of incentives. There are steps that are worth considering at this point to make sure your participant documents are in good shape but no amendments or changes in operation should be needed to incentive plans themselves in the short term.

30 December 2020

UK sanctions after Brexit – key changes of which to be aware

At 11pm on 31 December 2020, EU sanctions will cease to apply within the UK, and will be replaced by a new UK sanctions regime which is similar, but not identical to the current EU sanctions regime. In particular, there are a number of key differences both in drafting style and substance that will be relevant to compliance efforts by both UK and international businesses. In this briefing, we identify some of the key changes of which to be aware.

29 December 2020

The impact of Brexit on Personal Data Flows to the UK

On 24 December 2020, the United Kingdom ("UK") and the European Union ("EU") announced they had agreed on a post-Brexit "EU-UK Trade and Cooperation" Agreement (the "EU-UK Agreement"), which the EU plans to bring to provisional application on 1 January 2021 before being fully ratified. The EU UK Agreement reinforces the parties' commitment to privacy and data protection and contains provisions regulating the flow of personal data between the EU and the UK.

18 December 2020

UK: Immigration Update - December 2020

In October this year the Home Office published significant changes to the UK immigration rules. These changes demonstrate the Government's commitment to simplifying the rules and set out the foundation of the UK's new Points-Based Immigration System.
The majority of these changes took effect on 1 December 2020 and will apply equally to all nationals (except British and Irish citizens) who want to come to the UK from 1 January 2021 onwards. Here are the main changes that businesses and individuals should be aware of.

18 December 2020

UK: Brexit Immigration Briefing - Frontier Workers – What Employers Need To Know

EU nationals who are employed or self-employed in the UK and commute to work here but can show they live elsewhere, are considered to be frontier workers. A Frontier worker's status in the UK will be protected as long as they began their employment by 11 pm on 31 December 2020.

On 10 December the Home Office launched the frontier worker permit scheme. Applications can be made online and all frontier workers will need to hold a permit when travelling to the UK from 1 July 2021. The permit will confirm a frontier worker's right to work in the UK and can be used to access any services or benefits that they are entitled to in the UK.

18 December 2020

UK: Brexit Immigration Briefing - What Next - December 2020

With just under two weeks until the end of the transition period, and Brexit talks unlikely to reach a trade deal with the EU before the end of the transition period, businesses and employers in the UK need to be ready for how the new single immigration system will impact them. Global businesses have relied heavily on the absence of restrictions that EU and UK nationals have when working and travelling between the UK and other EU countries. This briefing sets out the key areas of consideration and what businesses can do to prepare.

14 October 2020

Drafting for Brexit in Finance Documents: A UK Perspective

At 11pm GMT on 31 January 2020, the UK ceased to be a member of the EU and a transition period came into effect. For the duration of the transition period, EU law has continued to apply to the UK and the UK has continued to be treated as if it were still an EU Member State. While this has delayed the effect of Brexit, the end is nigh as the transition period comes to an end at 11pm on 31 December 2020 ("IP completion day") and the UK becomes a third country under EU law. At the end of the transition period, a body of retained EU law will be created in the UK which is based on the EU law that applied to the UK prior to that date. This raises the question of how to draft for Brexit in finance documents after IP completion day and what documentary changes are necessary to address the UK's departure from the EU and the creation of retained EU law.

In this article, from a UK perspective, we consider EU legislative references, construction clauses, bail-in clauses and jurisdiction clauses.

28 September 2020

Agreement in principle for the Japan-UK trade deal

The UK and Japan have reached agreement in principle on the UK-Japan Comprehensive Economic Partnership Agreement (UKJCEPA). The UKJCEPA is expected to be largely based on the existing Japan-EU EPA (JEEPA) but there will be some notable differences.

The agreement (reached on 11 September 2020) has been hailed as "historic" by the UK government and represents the UK's first major post-Brexit trade deal. In Japan, the UKJCEPA has been welcomed as ensuring post-Brexit trade continuity with the UK. Japan and the UK have each enjoyed improved access to each other's markets since the JEEPA came into force in February 2019, but once the Brexit transition period ends on 31 December 2020 so too do the benefits enjoyed by both parties under the JEEPA.

While we must wait for the full text of the UKJCEPA (expected in October) to understand exactly what has been agreed, announcements by both governments offer some strong indications on what to expect.

17 September 2020

Brexit Update: Implications for Securitisations

A Brexit milestone was reached on 31 January 2020, when the UK ceased to be a member of the EU on entry into force of the long-awaited Withdrawal Agreement. However, the immediate implications of this exit were minimised due to the transition period, under which the UK is treated as a member of the EU for most purposes until 31 December 2020.

The end of the transition period therefore means the UK and the EU face another "no-deal" scenario unless a comprehensive trade deal is agreed before the end of 2020. With attention diverted by COVID-19, political progress on a UK-EU trade deal has been slow and, at time of writing, many are questioning whether a deal will be concluded by the end of the year.

16 September 2020

No-deal Brexit and its likely impact on transfers of personal data by EU-based entities to the UK

The UK formally left the EU on 31 January 2020, and its membership will be terminated at the end of the transition period on 31 December 2020 at midnight CET. The EU and the UK are currently negotiating and will need to come to an agreement on the future of their relationship by that date, or face a "cliff-edge" scenario: a no-deal scenario (i.e. no agreement about the "divorce" process) ("No-deal Brexit"). From a data protection standpoint, in case of a No-deal Brexit, the UK will become a "third country" within the meaning of the EU General Data Protection Regulation ((EU) 2016/679) ("GDPR"). The effect of such a change of status, is that data transfers will no longer be considered as intra-EU transmissions of data. In other words, personal data will no more flow from the European Economic Area ("EEA") to the UK without additional safeguards.

06 August 2020

'Falling Back on the WTO': No Deal Implications For The UK Insurance Sector

A no-deal Brexit looms large again after Michael Barnier, the EU's top negotiator, warned of 'no progress' on key issues at last month's trade talks. Although negotiations are expected to intensify, if a Free Trade Agreement (FTA) is not agreed in the next few months, access to the EU would change from passporting rights, based on the EU single market directives, to rules of the World Trade Organisation (WTO). Exiting on WTO rules will have significant implications for UK insurers who cannot write EU risks on a services basis, save in limited circumstances. The position is somewhat better for UK reinsurers who do not face the same access constraints but who could be subject to local restrictions. The position for UK reinsurers would also benefit from a positive equivalence decision under Article 172 of Solvency II

24 July 2020

Are insurers ready for Brexit?

The UK left the EU on 31 January 2020 with an 11-month transition period to agree on a free trade agreement (FTA). By passing up the opportunity to extend the 30 June deadline, the government has kept the UK on course to leave the transition period at the end of the year. Although the UK may want to step up the pace of negotiations with the EU on a FTA, the Coronavirus pandemic has potentially disordered the government’s economic and political calculations. A no-deal outcome, which once seemed very unlikely, now seems entirely plausible.

24 June 2020

Brexit and Energy: Reaching a UK-EU Agreement On Energy: The Challenges Ahead

The UK and EU have now each released their draft texts on a proposed agreement on energy. While there is some alignment between the texts, there are significant gaps between their positions, especially in relation to the arrangements for electricity and gas trading. The distance between the two sides has caused concern in the energy industry as time is running out to reach an agreement by the end of this year. This briefing considers the positions of both sides and the likely challenges in coming to an agreement.

17 June 2020

What the MiFIR third-country regime means for UK-EU cross-border services

UK and EU banks' passport rights to provide cross-border services between the UK and EU end on 31 December 2020. This briefing discusses how the EU regime for cross-border services under the Markets in Financial Instruments Regulation (MiFIR) operates and the implications for UK firms if the European Commission makes an equivalence decision in respect of the UK under MiFIR, including the impact of the changes to the MiFIR regime applying from June 2021. It also discusses the implications for EU firms if the UK makes a corresponding equivalence decision in respect of the EU under the ‘onshored’ MiFIR as it forms part of UK law after the end the Brexit transition period. This briefing was prepared in collaboration with UK Finance.

02 June 2020

Brexit and Insurance: Luxembourg insurance regulator analyses implications for unit-linked life insurance product investments

The Luxembourg insurance sector regulator Commissariat aux Assurances (CAA) issued this April an information notice exploring the implications of a possible no-deal Brexit in relation to investments of Luxembourg life insurance companies into issuers located in the UK or its dependent territories.

This client briefing provides an overview of the impact analysis the CAA sets out in its notice and the action points and structuring considerations resulting therefrom for insurance companies and their clients.

02 June 2020

Brexit and Insurance: Luxembourg Insurance regulator analyses implications for deposits of assets representing provisions in the UK

The Luxembourg insurance sector regulator Commissariat aux Assurances (CAA) issued this April an information notice on the implications of Brexit on the application of CAA Circular Letter 16/9. This circular letter deals with the deposit of securities and liquidities used as assets representing technical provisions by Luxembourg insurance companies in the United Kingdom (UK).

This client briefing provides an overview of the impact analysis the CAA sets out in its notice and the action points and structuring considerations resulting therefrom for Luxembourg insurance companies.

13 February 2020

Post-Brexit UK tariff regime opens for public consultation

Following the UK's withdrawal from the EU, the Department for International Trade is consulting on the UK default tariff rates as of 1 January 2021. These tariffs – to be called "the UK Global Tariff" regime – will apply to imports from major economies including the US and China (subject to any new trade agreements), and may also apply to imports from some countries with which the EU currently has preferential trade agreements, such as Canada, Japan and Mexico. If the UK is unable to agree a trade deal with the EU before the end of 2020, the tariffs will be imposed on imports from the EU in addition to new checks on the UK-EU border.

If your business imports goods from exposed economies or in tariff-sensitive sectors, you should consider taking part in the consultation. The deadline for responses is 5 March 2020.

29 January 2020

The EU-UK future relationship: What happens after Brexit?

The UK is preparing to leave the EU at midnight CET on 31 January 2020. The EU and the UK will then have until 31 December 2020, the end of the transition period provided for by the Withdrawal Agreement, to negotiate an agreement on their future relationship. Failing to reach such an agreement would lead to another "cliff edge" no deal scenario.

We explore the measures taken by each side to prepare for this next round of negotiations and what to expect from the months ahead.

28 January 2020

Brexit Delivered: The European Union (Withdrawal Agreement) Act 2020

Following the victory of the Conservative Party at the recent UK general election, Prime Minister Boris Johnson has used his large 80 seat majority to push the European Union (Withdrawal Agreement) Act 2020 through the new Parliament.

The Act contains significant changes from the Bill that was introduced in the last Parliament where the Government had no majority, including changes reducing Parliament's ability to scrutinise the Brexit process.

This briefing looks at the changes to the Act and their potential impact on the course of Brexit.

04 November 2019

UK Election Law: How are businesses restricted during the 2019 general election campaign?

The UK is holding a general election on 12 December 2019. UK election law regulates what individuals and companies can do and say during the period before the general election.

Many businesses will wish to discuss the potential impact of different general election outcomes with their clients and counterparties. Other businesses, such as investment managers and investment banks, may wish to circulate research papers to a wider audience. Some businesses may wish to actively participate in the political debate and/or make donations. All of these activities may be constrained by UK election law.

This briefing summarises the law and asks what it means in practice for business in the run-up to the election.

25 October 2019

Brexit and the role of the European Union (Withdrawal Agreement) Bill

Following the news that a revised Brexit deal had been agreed between the UK and the EU, the long-awaited European Union (Withdrawal Agreement) Bill (the WAB) was published by the UK Government on 21 October 2019.

For Brexit, the WAB is an essential piece of UK legislation, providing the means by which the UK Government can give effect in domestic law to the Withdrawal Agreement. While the bill has progressed through initial legislative stages, MPs balked at the Prime Minister's proposal to pass the complex 110-page bill at breakneck speed, and its progression through Parliament has now been put on hold amid talks of Brexit delay.

25 October 2019

Brexit-proofing contracts: Eight tips for landlords and developers

What can investors who are pressing ahead with expanding their UK property portfolios or commencing developments do to Brexit-proof their commercial leases and prelet agreements for lease? The laws governing these types of agreement in the UK will not change as a result of Brexit, and (thankfully) we know from the recent Canary Wharf v EMA case that Brexit is unlikely to result in frustration of these agreements.

But with continuing uncertainty around potential disruption to supply chains, currency fluctuations, and labour shortages as a result of Brexit, there are still some steps that prudent landlords and developers can take now to avoid the worst of any adverse consequences that could flow from a chaotic Brexit.

22 October 2019

A new Brexit deal - what has changed and what happens next?

The EU and the UK have agreed a new Withdrawal Agreement and Political Declaration with limited – but important – changes to the previous deal. The UK Prime Minister has succeeded on a first Parliamentary vote in favour of the legislation to implement the new deal but has failed to secure an accelerated timetable for the passing of that legislation. The EU now has to consider the UK's request for an extension of the Article 50 period.

30 September 2019

The new European Commission: Confirmation procedure and candidates

The incoming President of the European Commission, Ursula von der Leyen, has unveiled the team of European Commissioners who will drive the EU’s agenda for the next five years. Ms von der Leyen, the former German defence minister, says that it will be a "geopolitical Commission," signalling an intention to position Europe as a heavyweight on the world stage.

Here Clifford Chance experts, including of Counsel Michel Petite who worked for the EU for 27 years and was legal adviser to three Commission Presidents, assess the priorities for the new von der Leyen Commission.

13 August 2019

The UK Parliament can (probably) block a no-deal Brexit

The Withdrawal Agreement seems dead in the water, and negotiations between the UK and EU have stalled. The UK Government is determined to leave the EU on 31 October, but could Parliament stop it?

The answer appears to be yes – probably. If a majority to prevent no-deal emerged in Parliament, there appear to be mechanisms that would allow them to achieve that objective.

This briefing examines how the Fixed-term Parliaments Act 2011 works, discusses how an alternative government may be formed following a vote of no confidence, and considers other ways Parliament could legislate to avoid no-deal.

15 July 2019

Brexit - Key questions answered

Amidst a flurry of campaign promises, policy announcements and discussions of parliamentary procedure, Brexit continues to dominate the UK political agenda. This briefing looks at some of the key questions as the UK prepares to leave the EU.

To help businesses make sense of the months ahead, we look at the Withdrawal Agreement, the Political Declaration, and the Irish backstop. We also analyse key concepts of WTO law and trade policy, as well as the likelihood of an early election and what the concept of a 'managed' no-deal Brexit means in practice.

04 April 2019

Romania - Brexit Update

The Brexit saga is continuing with no clear definitive solution in sight. But what is currently definitive is that the UK will leave the EU with "no deal" on 12 April unless an alternative route is found.

Following the Contingency Action Plan implemented by the European Commission, several Member States have taken steps in preparing a consolidated contingency plan at national level. While no similar contingency plan has been announced yet by the Romanian Government, certain Romanian authorities or institutions have issued public statements expressing their approach in their respective competence areas in relation to a potential impact of a no-deal Brexit.

29 March 2019

The use of English law in Italian financial transactions after Brexit

Since the Brexit referendum of June 2016, clients have on several occasions queried whether after the United Kingdom's withdrawal from the European Union judgments of the English courts will continue to be recognised and enforced in Italy, and whether the choice of English law and English jurisdiction will remain viable options for Italian financial transactions.

While the short answer to all three of these questions is "yes", Brexit will bring about certain changes, some of which we will discuss in this briefing.

26 March 2019

Italy provides for post-Brexit temporary regime

The Italian Council of Ministers has approved a new law decree creating an 18-month temporary regime for UK firms engaging in regulated business in Italy and Italian firms engaging in regulated business in the UK. The temporary regime will become effective, if there is a no-deal Brexit, on the day the UK leaves the EU (for convenience, the 'exit date'). The new regime aims to mitigate the main 'cliff-edge' impacts and disruption that could have ensued under Italian law following the sudden loss of the EU passport rights in a no-deal Brexit.

27 February 2019

Brexit Will Not Frustrate The European Medicines Agency's Lease at Canary Wharf

The case of Canary Wharf (BP4) T1 Limited & ors v European Medicines Agency [2019] EWHC 335 (Ch) provides commercial certainty for contracting parties bracing themselves for Brexit across England and Wales, at a time where uncertainty is otherwise rife. The English High Court rejected the European Medicines Agency's case that their 25-year lease of premises in Canary Wharf would be discharged by way of frustration on the UK's withdrawal from the EU – Brexit did not legally frustrate their contract. The judgment will discourage other contracting parties from claiming that Brexit frustrates their contracts.

21 February 2019

EIOPA recommendations offer some clarity for the Insurance sector in case of a Hard Brexit

On Tuesday 19 February 2019, the European Insurance and Occupational Pensions Authority ("EIOPA") issued Recommendations for the insurance sector if the United Kingdom ("UK") withdraws from the European Union (EU) without a withdrawal agreement. The Recommendations are addressed to National Competent Authorities ("NCAs") and apply on a 'comply or explain' basis, with two months given to explain non-compliance. In line with previous EIOPA recommendations, we anticipate that Member States will comply.

UK insurers have for a long-time been calling for clarity as to their ability to service existing contracts after Brexit, with EIOPA only acting after some national governments, including Germany, France, Spain, Italy and Ireland, began to put their own laws in motion and started to deviate from the tightly controlled Brexit withdrawal negotiation process.

Tuesday’s Recommendations are broadly speaking helpful for UK insurers but the situation for the UK intermediaries that introduce the vast bulk of risks into the London market and for EU based insurers who seek to source EU business via UK intermediaries remains uncertain.

08 February 2019

The Netherlands / Brexit: exemption regulation extended to include UK investment firms

The Dutch regulation which exempts certain non-EU based investment firms from the MiFID licensing requirement in the Netherlands has been extended so that it will include investment firms based in the United Kingdom in case of a no-deal Brexit. A formal decision from the Dutch Minister of Finance is still required to activate the exemption.

The exemption will allow UK based investment firms to provide investment services and enter into own account trading within the meaning of the EU Markets in Financial Instruments Directive ("MiFID") without a local Dutch licence. The exemption is temporary in nature and will apply until 1 January 2021.

Making use of the exemption will require the UK firm to submit evidence of the fact that it is licensed and supervised in the United Kingdom for the services that it wishes to provide in the Netherlands.

07 February 2019

Brexit-related immigration alerter - UK/The Netherlands

Do you have a business in the UK employing EU nationals, or a business in the Netherlands employing UK nationals? The upcoming changes and proposed transitional arrangements following Brexit may be relevant to you and your employees. 

This Clifford Chance Brexit-related immigration alerter provides an overview of the key rules in the UK and the Netherlands, as well as recommendations on what your business can do now to prepare.

22 January 2019

Brexit deal or no deal? – The Netherlands mitigates the risks with legislative measures

The Netherlands is introducing a number of contingency measures to anticipate a potential hard Brexit, including (i) providing the Dutch Government with legislative tools to act quickly to mitigate unforeseen but unacceptable adverse consequences and (ii) ensuring that settlement systems currently designated by the UK will continue to qualify as systems within the meaning of the EU Settlement Finality Directive in case of an insolvency of a Dutch member firm. We also briefly discuss some market entry considerations for UK firms in case of a hard Brexit.

16 January 2019

The UK temporary permissions regime – how EU27 funds can continue to be marketed in the UK on a no deal Brexit

The Italian Council of Ministers has approved a new law decree creating an 18-month temporary regime for UK firms engaging in regulated business in Italy and Italian firms engaging in regulated business in the UK. The temporary regime will become effective, if there is a no-deal Brexit, on the day the UK leaves the EU (for convenience, the 'exit date'). The new regime aims to mitigate the main 'cliff-edge' impacts and disruption that could have ensued under Italian law following the sudden loss of the EU passport rights in a no-deal Brexit.

14 December 2018

Germany prepares for 'No deal Brexit' - update

The German Federal Government has published a draft law to preserve market access for UK firms offering banking business or financial services in Germany under the European passport regime for a transitional period in case of a "no deal Brexit". The government draft is based on the draft prepared by the German Ministry of Finance in November (see our Brexit briefing of 23 November 2018). The draft includes certain additions and useful clarifications on the scope of this transitional regime.

23 November 2018

The draft Political Declaration: The future for the UK and EU after Brexit

The UK and the EU have released a draft Political Declaration on the future relationship between them. This follows the provisionally agreed draft Withdrawal Agreement published on 14 November 2018.

This briefing considers the contents and implications of the long-awaited Political Declaration. What does it mean for goods and financial services, customs and regulation and the UK's desire to have an independent trade policy?

15 November 2018

UK and EU agree Brexit deal – what does it mean, and what happens next?

The UK and EU have provisionally agreed a draft Withdrawal Agreement and outline Political Declaration on their future relationship. A special European Council has been scheduled to take place on 25 November to sign the agreement.

The greatest risks are posed by the lack of Cabinet support (with key resignations already announced), disparate factions within the Conservatives and, ultimately if it gets that far, the UK House of Commons voting against the deal. The Withdrawal Agreement has generated intense opposition from across the UK political spectrum – not least the resignation of Dominic Raab, the Brexit Secretary.

This briefing considers the substance and implications of the emerging deal, the next steps, and the complex risks and multiple possible scenarios that arise between now and 29 March 2019, and beyond.

16 October 2018

Intellectual Property and a no-deal Brexit: The government's guidance on exiting the EU with no deal

On 24 September, the UK government published notices about what they plan will happen in various areas of intellectual property law if the UK leaves the EU on 29 March 2019 without a withdrawal agreement or a transitional period. The notices confirm that the European Union (Withdrawal) Act 2018 will convert existing EU regulations relating to intellectual property into UK national law and will preserve domestic legislation implementing EU Directives on intellectual property matters. We summarise the contents of the notices below.

06 September 2018

UK regulation of medicines and medical devices in the event of a 'no deal' Brexit

On 23 August 2018 the UK government published several technical notices on how to prepare for Brexit in a 'no-deal' scenario. Although rather general in nature, the documents reveal first indications of how the UK government intends to regulate the health and medical sector after Brexit. While some general implications for the industry have become clear, specific effects and detailed consequences will be subject to further preparatory work and consultation.

16 August 2018

Brexit, English Law and the English Courts: Where are we now?

Brexit brings many uncertainties that have yet to be resolved. However, the English law used in transactions is not one of them; it will remain the same after Brexit as it was before because the EU, for all its law-making, has had minimal impact on transactional law. Similarly, the procedure, judges and practitioners in the English courts will not change as a result of Brexit. The main way in which Brexit might affect the English courts is the ease of enforceability of an English judgment in the EU, or vice versa, but that will only matter if enforcement in the EU is important and no satisfactory mitigants are available.

30 July 2018

Implementing Brexit in the UK: The EU (Withdrawal Agreement) Bill

The UK Government has published a White Paper on its proposals for a European Union (Withdrawal Agreement) Bill to implement the UK's Withdrawal Agreement with the EU into UK domestic law. The White Paper details how the UK will implement the planned transition period, as well as the UK Government's proposals for dealing with the protections for citizens' rights after Brexit and the administration of the UK's proposed financial settlement with the EU.

24 July 2018

REACH and the chemicals regime in the UK after Brexit

With notoriously complex supply chains, and deep branches into all other areas of manufacturing, contingency planning for the chemicals sector is made all the more difficult (but all the more necessary) by a lack of clarity on what the UK's long-term position will be. Many companies have been considering the implications for a no-deal Brexit in which there is no agreement on a future relationship with the EU or on a transition arrangement. This briefing considers ten questions about the UK chemicals regime post-Brexit focusing on the EU REACH regime... test

16 July 2018

Britain's Brexit Blueprint: The UK Government publishes its future relationship white paper

The UK Government has published its long-awaited White Paper, "The Future Relationship between the United Kingdom and the European Union". This follows the agreement reached by the UK Cabinet which precipitated the resignations of the Brexit Secretary David Davis and Foreign Secretary Boris Johnson, and led a number of Prime Minister Theresa May's own MPs to call for her resignation. The White Paper is the most detailed outline yet of the UK's aspirations for its future relationship with the EU since Article 50 was triggered in March 2017. The EU has welcomed the White Paper, but still may reject some key elements of the UK's proposals.

06 July 2018

Onshoring EU financial services legislation under the European Union (Withdrawal) Act 2018

The European Union (Withdrawal) Act 2018 provides for domestication of EU legislation and grants powers to the Government to correct deficiencies arising from Brexit. On 27 June 2018 HM Treasury and the UK financial services regulators announced how they intend to use these powers. The announcements also discuss the UK's approach to implementing a temporary permissions and recognition regime to cover the UK leaving the EU without a deal.

04 July 2018

Crunch time? The EU takes stock of Brexit at the June European Council

EU leaders met on 28-29 June 2018 at a time of growing divisions across Europe. A migration crisis reinvigorated by the election of a populist government in Italy, an incipient trade war with the US, and weakening transatlantic co-operation in NATO, all left time short to discuss Brexit. The Council was apparently, however, not obviously impressed by the current state of the Brexit negotiations. With the clock ticking, all eyes are now on the October Council as a final hurdle – or last chance saloon – before a no deal Brexit becomes increasingly inevitable.

05 April 2018

Update: The PRA's regulatory approach to insurer's preparations for Brexit

On 28 March 2018, the Bank of England (“BoE”) issued a press release on its regulatory approach to Brexit. In the press release, the BoE published a number of documents including a policy statement setting out the Prudential Regulation Authority’s (“PRA”) revised approach to the authorisation and supervision of international insurers (PS4/18), together with a related “Dear CEO” letter on firms’ preparations for Brexit. This note examines the impact of the publications on insurers’ Brexit planning.

19 February 2018

Next Steps: Notice on consequences of Brexit in (Re)Insurance Sector

The European Commission (the "Commission") published a number of notices to stakeholders in different sectors on 8 February 2018, on the consequences of Brexit for financial services. Each notice is essentially a 3 page warning with a clear message that "preparing for the withdrawal is not just a matter for EU and national authorities but also for private parties". This briefing looks at the points raised by the Commission in the notice specific to the (re)insurance sector.

16 February 2018

Brexit: implications for contract continuity and repapering

One of the key questions firms need to consider in their Brexit planning is how to deal with cross-border financial services contracts. In a scenario where the UK leaves the Single Market and no deal covering financial services is agreed, firms will lose the right to passport financial services activities between the UK and EU27. This raises uncertainties and a potential cliff-edge risk for the continuity of existing cross-border contracts, which currently underpin many firms’ businesses.

Firms will need to consider whether and how these risks to contract continuity may be mitigated, or whether to move existing contracts to a locally-licensed entity, which may itself require a complex repapering exercise. This briefing highlights some practical implications for firms when considering these issues.

27 January 2018

Brexit: The future of financial regulation and supervision

The House of Lords EU Financial Affairs sub-committee published its report "Brexit: the future of financial regulation and supervision" on 27 January 2018. The purpose of the inquiry was to examine how financial regulation and supervision could evolve following Brexit in order to promote the stability and development of the UK's domestic market while enabling it to continue to serve international business. Clifford Chance Partner, Simon Gleeson, gave evidence to the inquiry and is extensively quoted in the report. In discussing the incorporation of EU regulation into UK law Gleeson said: “If we simply copy Europe … we will be moving into our primary legislation stuff that properly belongs in regulators’ rulebooks … If we take a bunch of regulatory material that, almost by its nature, should be reasonably dynamic, and hard-bake it into statutory instruments, we are creating a monstrous procedural problem for ourselves in how we regulate the market.”

08 December 2017

Brexit: sufficient progress, but to where?

"Sufficient progress" has been declared. The UK-EU announcement on 8 December 2017 marks a significant step, and one that the UK government was under huge pressure to make.

The guarantee of no border checks between the Republic of Ireland and Northern Ireland ultimately implies a very high level of regulatory alignment between the UK and the EU. This may even include the possibility of a customs agreement that is very similar to the existing customs union.

While this agreement arguably saves the day for the UK government, it could make the final reckoning all the more difficult, as supporters of a hard Brexit realise that the UK might end up much closer to the EU than they thought.

16 November 2017

Supporting Europe's Economies and Citizens: A modern approach to financial services in an EU-UK Trade Agreement

In this new report, Supporting Europe’s Economies and Citizens: a modern approach to financial services in an EU-UK Trade Agreement, UK Finance sets out a model for cross-border market access following UK’s exit from EU.

The report was developed in collaboration with Clifford Chance and Global Counsel LLP and proposes an ambitious trade in services framework that would allow customers across Europe to continue to benefit from access to EU and UK banking and capital markets services.

31 October 2017

The EU (Withdrawal) Bill in October - amendments and delays

The European Union (Withdrawal) Bill is shaping up to be one of the most controversial pieces of UK legislation in recent memory, with over 400 amendments and new clauses (NCs) proposed by MPs so far. Our briefing of 29 September 2017 looked at the amendments to the Bill proposed by MPs up to that date. Since then, over 200 further amendments have been proposed by MPs concerned about issues ranging from parliamentary sovereignty, devolution and human rights to the environment. This briefing considers the key themes in the new batch of amendments, including which amendments may cause the biggest headaches for a Government with a slim working majority in the House of Commons.

23 October 2017

Brexit Impact Assessment Tool

Clifford Chance has launched a Brexit impact assessment tool, which assists EEA banks with deposit-taking UK branches with their contingency planning for Brexit by identifying areas where there are likely to be significant differences between the UK regulatory requirements that currently apply to them in relation to their UK branches and those that may apply post-Brexit.

Key reasons for using the impact assessment tool:

  • identify areas of ‘higher impact’ where there are likely to be significant additional UK regulatory requirements for EEA banks with UK branches post-Brexit;
  • assist firms in deciding where to focus their Brexit planning efforts and resources; and
  • help firms navigate through multiple rule sets which apply differently to EEA banks and third country banks with UK branches.

Download the brochure for further details.

20 October 2017

Post-Brexit vision for insurance: Sam Woods, Mansion House speech on geofinance

On 4 October 2017, Sam Woods the Deputy Governor for Prudential Regulation and the Chief Executive Officer of the Prudential Regulation Authority ("PRA") delivered a speech at the Mansion House City Banquet.

The speech explored the impact of geography on the shape of banks, insurers and financial regulation – a dynamic Sam Wood's referred to as "geofinance”. Interestingly, the speech referred to the PRA's post-Brexit vision for the insurance sector which is further explored in this briefing. 

29 September 2017

Amendments to the European Union (Withdrawal) Bill - key trends

The European Union (Withdrawal) Bill is one of the most controversial pieces of legislation to be put before MPs in recent memory. The objective of the Bill is to ensure that the UK's body of law continues to operate as a coherent and complete whole post-Brexit, effectively grandfathering existing EU law into UK law.

The challenge the government faces is the scale of the exercise - thousands of instruments need to be retained - and the Government has proposed extensive use of delegated legislation to adapt these instruments to the UK's new position, provoking accusations of executive overreach.

MPs from all main parties have proposed a large number of amendments on a range of issues. This briefing sets out the key trends in the amendments proposed so far.

12 September 2017

EU Commission position paper on Brexit and intellectual property

On 6 September, 2017 the EU Commission released a position paper to the EU member states (excluding UK) on what it will present as the requirements to be met by the UK for intellectual property when the UK withdraws from the EU. The paper focuses on continuity of existing protection, without limiting the UK from making changes to its domestic laws (with prospective effect) in future. It reflects issues and concerns that have been widely debated among IP practitioners, while leaving the UK considerable leeway in areas of detail.

11 September 2017

Brexit - citizens' rights, dispute resolution and the CJEU

Finding a means to resolve direct disputes between the UK and the EU after withdrawal should be easy. The difficult part is what ability companies and individuals should have to pursue their rights under the withdrawal agreement and the agreements forming the “deep and special partnership” between the UK and the EU. The UK Government appears to reject any recourse by companies and individuals to an international tribunal (including the Court of Justice of the European Union), while the EU appears to require it. If the UK Government’s view prevails, then individuals in the UK will find that the entitlement they have today to take direct action to protect their rights under EU treaties will not apply to their rights under any withdrawal agreement, unlike individuals in the EU.

20 July 2017

Brexit - ESMA signals tougher stance on UK asset manager relocation to the EU

ESMA has published three opinions setting out sector-specific principles to support supervisory convergence in the context of requests from UK financial institutions seeking to relocate to the EU27.

The opinion on Investment Management covers UCITS and AIFMD structures, and delegation to MiFID investment firms. Most of the content is not surprising and what we already know about regulators' considerations when an asset manager is establishing in their jurisdiction, but it does indicate a change of tone from ESMA in respect of Brexit relocations, particularly in relation to substance requirements on delegation. The underlying message is that ESMA is requiring EU regulators to be tough on proposed relocations and, in particular, any proposals to delegate functions back to the UK.

Non-EU asset managers with EU fund structures (e.g. U.S. managers acting as delegates to EU management companies) should also follow this development, as the ESMA opinion and the EU regulatory reaction to it are relevant not only to UK managers looking to relocate to the EU, but also to non-EU managers who are part of EU fund structures.

07 July 2017

The Repeal Bill - what to watch out for

It has been rumoured that the UK Government will shortly lay before Parliament a ‘Repeal Bill’ (the Bill formerly known as the “Great” Repeal Bill), which will provide that EU law that was applicable to the UK immediately before Brexit continues in force as UK law after Brexit.

This will mark the beginning of an unprecedented legislative exercise to domesticate, in under two years, almost the entire EU body of law, which has taken the EU sixty years to create. Lawyers will take centre stage in explaining what it all means. The Government has so far been decidedly coy as to its plans, but here are some of the key issues to watch as the Government’s legislative aims are clarified.

30 October 2017

Bridging to Brexit - insights from European SMEs, corporates and investors

In a new report, Bridging to Brexit: Insights from European SMEs, Corporates and Investors, published by AFME and commissioned from The Boston Consulting Group with support from Clifford Chance, the impact of Brexit on SMEs, large corporates and investors is assessed. The findings indicate that a hard Brexit will be a particular challenge for SMEs, but also raises issues for corporates and investors, with wider implications for growth in the real economy. 

23 June 2017

The future UK-EU relationship: re-Examining the EEA and other options

The uncertain outcome of the UK election on 8 June has reopened the question of what the UK's future relationship with the EU should be.

Whilst few doubt that the UK will actually leave the EU, many are asking whether a 'soft' Brexit is now more likely, and whether the UK may remain, in the short or longer term, a member of the European Economic Area which links Norway, Iceland and Liechtenstein to the EU's single market, but not its customs union.

This briefing re-examines the UK's options for its relationship with the EU following the UK's withdrawal, including the EEA agreement, bilateral agreements on the Swiss model, a customs union agreement, a Free Trade Agreement and a "no-deal" scenario of trading on WTO terms

08 June 2017

ESMA issues opinion on supervisory approach to Brexit-related relocations from the UK

On 31 May 2017, the European Securities and Markets Authority (ESMA) published an opinion setting out nine principles to support supervisory convergence in the context of relocations from the UK, following the UK's decision to leave the EU. The opinion is addressed primarily to national regulators – also known as national competent authorities (NCAs) – of the 27 Member States that will remain in the EU (EU27) but it will be relevant to firms considering relocating entities, activities or functions from the UK, including through use of delegation structures.

19 May 2017

What does the Singapore FTA decision mean for the EU's FTAs and Brexit?

On 16 May 2017 the Court of Justice of the European Union ruled that the EU could not conclude the proposed Free Trade Agreement with Singapore alone, but that it would also have to be ratified by the EU's member states in order for it to come into force.

This long-awaited ruling will shape the EU's trade policy for years to come, and sets a precedent for future trade negotiations between the EU and third countries, including any free trade agreement that the UK may look to conclude with the EU once it has left.

This briefing summarises the opinion of the CJEU, and asks what it means for the EU's trade policy, and whether it is good or bad news for the UK.

14 March 2017

Brexit: Legislation passed allowing the UK to give notice under article 50

The European Union (Notification of Withdrawal) Act 2017 gives the UK Government the authority the Supreme Court decided it required in order to notify the European Council under article 50 of the Treaty on European Union of the UK's intention to leave the EU. The Government can therefore deliver the UK's withdrawal notice by its self-imposed deadline of the end of March 2017. The UK will then leave the EU on the entry into force of a withdrawal agreement between the UK and the EU or, failing that, in late March 2019.

03 November 2016

Brexit: Parliamentary approval required for UK to leave the EU

The English High Court has decided in R (oao Miller) v DExEU that the Government needs prior authorisation from Parliament to give the article 50 notice that will start the process of the UK leaving the EU. The Government must therefore either appeal successfully or it must engage with Parliament. If an appeal fails, there could be delays while Parliament grapples with Brexit, and uncertainty as to what the outcome will be.

28 September 2016

The impact of Brexit on IP Rights

The United Kingdom's vote to leave the European Union has led to a period of legal uncertainty with the future relationship between the UK and EU not yet being defined. Intellectual property law is not safe from the immediate effects of Brexit and also faces an uncertain future. It is anticipated that for at least the next two years, the UK will remain a full member of the EU and will continue to apply EU intellectual property law. As no Member State has withdrawn from the EU before, the impact on IP rights cannot be precisely predicted and depends on the outcome of negotiations and agreements made between the UK and the EU.

16 September 2016

Brexit: The way forward for multinationals

As the dust settles following the UK's decision to leave the EU, Clifford Chance experts explore the impact of Brexit from a business and legal perspective. Here we look at the likely process and timetable for the EU/UK Brexit negotiations and what action multinationals outside the financial services sector should take now to influence the outcome of Brexit. We also discuss how the EU and the UK might agree to facilitate cross-border trade in goods and services short of a single market, including rights to establish businesses, equivalent access, restrictions on protectionism and transparency around regulation.

22 August 2016

The regulatory landscape of Brexit for CLOs: where to from here?

The UK's vote to leave the EU has raised questions across the financial markets and answers are only beginning to trickle through. For CLO market participants – and UK-based collateral managers in particular – the biggest legal concerns are regulatory, mainly around MiFID authorisation and risk retention. In this briefing we review the issues facing the CLO market as a result of the Brexit vote and discuss why, for the moment, the best bet is probably to wait and see.

08 August 2016

Brexit: Passporting and equivalence implications for the UK insurance sector

The implications of Brexit for EEA authorised insurers, reinsurers and intermediaries, including those currently authorised in the UK, will largely depend on the legal agreements governing the basis of the UK’s future relationship with the EU. Although these are subject to negotiations, there are some certainties in the UK's favour: a respected regulatory system, the likelihood of securing Solvency II equivalence, and an environment of conservative capital management – all of which make the UK a stable and competitive participant in global insurance markets.

01 July 2016

Brexit - What does it mean for the restructuring and insolvency market?

Following the UK's vote to leave the EU, companies will need to consider the implications for existing transactions and the potential impact of future legislative changes. Existing EU law continues to apply and there will be no immediate impact until the UK's exit terms have been negotiated, however companies can start thinking about these issues now. In the longer term, whilst there will inevitably be some uncertainty, there will also be many opportunities for businesses that are able to embrace the changes ahead.

30 June 2016

The potential impact of Brexit on cross-border aircraft financings

In the wake of the "Leave" outcome of the UK's EU referendum last week, we consider the potential impact of a "Brexit" on cross-border aircraft financings.  Given the continued uncertainty surrounding the terms and timing of Brexit, it is impossible to reach any definitive conclusions, however, this note highlights selected issues likely to be of relevance to existing and new transactions and to industry participants.

27 June 2016

Brexit and jurisdiction clauses: choice of English law following the EU referendum

The choice of law to govern a contract will be unaffected by Brexit, if and when it occurs, but jurisdiction provisions may require consideration.  But that is only the case if enforceability of a judgment throughout the EU is a significant factor in the choice of jurisdiction.  If it’s not, nothing changes.  If enforceability of a judgment throughout the EU is important, there are various responses available, including the bold one of giving the English courts exclusive jurisdiction.

24 June 2016

Brexit - Hospitality Sector Analysis

The upcoming referendum on the UK's membership in the EU is likely to have a significant impact on the hospitality sector. With many travellers reliant on the EU freedom of movement, London being a centre for hotel investment and location for the EMEA headquarters of several global hotel operators, there are likely to be consequences for the hospitality business if the Brexit occurs. This note considers some of those consequences and considers possible contingency plans.

25 April 2014

A legal assessment of the UK’s relationship with the EU: a financial services perspective

TheCityUK, the leading cross-sectoral body for financial and related professional services in the UK, is gathering evidence of the importance of the UK’s relationship with the EU including our industry’s view of how that relationship should develop to enable the UK to be part of a globally competitive Europe.

A study of the views of business leaders in our industry, The City Speaks, showed unequivocal support for the UK’s continued membership of the EU. Our survey of public attitudes to EU membership, The City Listens, made it clear how important the views of business leaders are in helping people decide about the EU. Finance for Jobs and Growth in Europe illustrated the role of financial services in delivering solutions to the policy challenges facing the EU. Analysing the Case for EU Membership sets out how the economic evidence stacks up.

This study by Clifford Chance LLP summarises the legal implications of different EU membership scenarios for the UK from a financial services perspective. Its message is clear: membership of the EU is essential for the UK’s success and for the ability of our businesses to compete in world markets.

It has been suggested that the UK could fundamentally change its relationship with Europe, but still maintain all the benefits of membership. This is not the case.

Continued EU membership is essential to this country’s economic wellbeing, but that does not mean that the status quo is good enough. Europe must reform and modernise if it is to better serve the needs of its 500 million people. TheCityUK is gathering evidence as a starting point in the reform debate; the next step is to use this evidence to show how Europe can be made increasingly competitive and successful.
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