12 March 2019
Labour measures adopted by the Spanish Government to reduce the impact of a no-deal Brexit
Spanish Royal Decree-Law 5/2019, dated 1 March, on the
adoption of contingency measures in light of the withdrawal of the United Kingdom from the European Union without agreement under Article 50 of the Treaty on the Functioning of the European Union ("TFEU") was published in Spain's Official State Gazette on 2 March (the "Royal Decree").
The temporary measures established in the Royal Decree are designed to facilitate the transition towards the situation where the UK is considered a third country, to protect the interests of citizens and economic operators who exercised their right to freedom of movement according to the liberties granted under the TFEU prior to the date the UK is expected to leave the European Union.
07 March 2019
Poland prepares for no-deal Brexit
The Polish Council of Ministers has adopted three draft Acts in case the United Kingdom leaves the EU without a withdrawal agreement. One of them provides for the rules of conducting activities by certain financial market entities. The draft Act is to enter into force on 30 March 2019.
04 March 2019
Spain prepares for 'no-deal Brexit'
- Contracts for the provision of banking, securities, insurance or other financial services entered into in Spain by UK regulated entities before Brexit will remain in force following a "no-deal Brexit".
- UK entities must obtain a new authorisation under the relevant third-country authorisation regime to amend existing contracts or to enter into new ones.
- Existing licences will remain in force in relation to the activities linked to the servicing of the existing contracts which require authorisation for a period of nine months in order to enable the termination or assignment of existing contracts or the application for a new third-country authorisation.
- Contracts entered into after Brexit Day are out of scope, so UK entities will not be allowed to enter into new contracts thereafter until (and if) a new third-country authorisation is obtained.
- The transitional measures will enter into force on Brexit Day, unless a withdrawal agreement between the EU and the UK enters into force before such date.
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  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.
14 February 2019
Czech 'Brexit Act' and financial services
The Czech Government has prepared a Bill that will temporarily regulate relations between the Czech Republic and the UK in case the UK leaves the EU without a withdrawal agreement having been signed. It is expected to be approved by the Czech Parliament by the end of February.
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.
31 January 2019
Preparing for an imminent Brexit: potential disputes under commercial contracts
Brexit is now imminent, and with it will come the potential for problems under existing contracts. Companies must explore in advance the risks they face, what their options are, and what choices they should make.
Our briefing considers the potential disputes under commercial contracts that could arise on Brexit and which contractual clauses will be most relevant.
30 January 2019
UK: Brexit - What happens to EU citizens if there is no deal?
On 28 January, the Home Secretary set out his plans for EU citizens coming to the UK after the UK’s exit from the EU in the event of ‘no deal’.
28 January 2019
Brexit Update - EU 'No Deal' contingency planning
The UK is due to leave the EU in just two months, and there is no clarity about whether an orderly withdrawal is possible. The EU has begun preparations for a 'No Deal' outcome, where the UK would leave the EU on 29 March 2019 and become a third country with no formal trade or political agreement in place.
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
Brexit and Capital Markets: Considerations for a 'no deal' Brexit
29 March 2019 (the proposed "Brexit date") is looming, yet there is still no decision on whether the UK will enter into a transitional arrangement with the EU or leave with no deal.
This briefing highlights some key questions to consider should the UK cease to be an EEA country on 29 March 2019 without any transitional or special arrangements.
07 January 2019
Brexit and choice of courts: UK accedes to the Hague Convention
The Hague Convention on choice of court agreements will come into force in the UK on 1 April 2019 if there is a "no deal" Brexit. As a result, all EU member states will be obliged to give effect to exclusive choice of court agreements in favour of the English courts entered into after that date and to enforce the resulting judgment.
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.
10 December 2018
Brexit update: European Court of Justice confirms Article 50 can be unilaterally revoked
The Court of Justice has confirmed the opinion of Advocate General Manuel Campos Sánchez-Bordona and ruled that the United Kingdom can unilaterally revoke Article 50, without requiring the approval of the other Member States. The UK's EU membership would then continue under the same terms and conditions as before.
23 November 2018
Germany prepares for 'No Deal' Brexit
To prevent market disruption and negative implications for the financial markets in case of a "no deal Brexit", the German Ministry of Finance has published a draft law to preserve market access for UK firms offering banking business, financial services or insurance services in Germany under the European passport 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.
15 November 2018
France getting ready for a 'no deal' Brexit
The French government is implementing changes to allow UK firms operating in banking and finance to continue their activities in France in the event of a ‘no deal’ Brexit and to ensure that French firms will still be able to work with UK entities under their new third country firm status.
15 October 2018
Brexit and a general election in the UK – the rules and the likelihood
Will there be a general election in the UK? The next general election in the UK is scheduled for 5 May 2022 by the Fixed-term Parliaments Act 2011, and triggering one is not easy but not impossible.
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?
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.
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.
27 June 2018
UK: Immigration Update - Brexit - What are the next steps for EU nationals in the UK
The Home Secretary recently published a statement of intent setting out how European Union (EU) nationals may be able to secure their long-term status in the UK.
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.
28 March 2018
Insurance Brexit Update: Transition, Temporary Permissions and Contract Continuity
At a joint press conference held on 19 March 2018, David Davis and Michel Barnier representing the United Kingdom and the European Union announced the agreement in principle to a draft Withdrawal Agreement ("WA") containing a transitional period of 21 months, i.e. from the entry into force of the withdrawal agreement (no later than 30 March 2019) until 31 December 2020.
23 March 2018
Brexit - what does the transition agreement mean?
On Friday 23 March 2018, the EU announced that agreement in principle had been reached on a transition (or 'implementation') period running from the UK's withdrawal from the EU on 29 March 2019 to the end of 2020, during which the UK would retain access to the EU Internal Market and Customs Union on its current terms.
23 February 2018
The UK's approach to Brexit transition
The UK government has issued a response to the EU's proposals on how any transition period should apply. For the most part, the texts are broadly aligned. The UK government's text builds on the draft text in the European Commission's position paper dated 7 February 2018.
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.
09 November 2017
Emissions Trading: EU and UK seek to mitigate Brexit 'Cliff Edge'
EU Institutions and the UK Government have made separate proposals in relation to the EU Emissions Trading System for dealing with the immediate consequences of the UK leaving the EU in March 2019 and minimising the impact of a "cliff edge departure". Responses to the UK Government's proposals must be made by 24 November 2017. This briefing comments on the proposals.
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.
02 October 2017
UK: Brexit - what next for EU nationals in the UK
On 22 September 2017 Theresa May stated that EU citizens' rights will be enshrined in the final Brexit treaty and called on European leaders to strike a "bold and ambitious" trade deal with Britain in two years. So what can EU citizens do now to prepare?
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.
23 August 2017
Brexit: The way forward for applicable law and civil jurisdiction and judgments?
Both the EU and the UK have now published short papers setting out their positions on judicial cooperation in civil and commercial matters. A comparison of the two perhaps offers a hint as to what a withdrawal deal might look like regarding these issues, as well as guidance as to what parties can do now to safeguard their positions.
21 July 2017
Brexit: European Union (Withdrawal) Bill and the devolution dimension
The Scottish and Welsh devolved administrations have said that they will refuse their consent to the Government's Repeal Bill. Refusal would be a political gambit rather than a legal one, but no less significant for that. But the Bill, or something like it, must be passed if the UK's legal system is to function after Brexit. Politics, even of devolution, must not be allowed to block critical measures.
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.
14 July 2017
Brexit: European Union (Withdrawal) Bill published
The Bill colloquially known as the Great Repeal Bill has now been published. It aims to bring existing EU law into UK law on the UK's exit day. It also seeks to confer wide powers on the Government to cure deficiencies in that retained EU law, but it gives no indication as to how those powers will in practice be exercised. The political battle awaits.
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.
28 June 2017
Europe holds the cards on clearing yet both sides can profit
There is encouragement for those who fear that Brexit will diminish the City’s status.
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.
31 March 2017
Brexit: The White Paper on the Great Repeal Bill
The UK Government's White Paper on its forthcoming Great Repeal Bill offers a few high level indications as to the Government's plans for the Bill, but the detail, which could prove controversial, must await the publication of the Bill itself. The Bill is due to be introduced into Parliament at the start of its next session, likely to be in May 2017.
29 March 2017
Brexit: The UK gives its article 50 notice
The die is cast. The Rubicon has been crossed. Whatever your favoured expression, whether drawing on the Roman origins of the EU or otherwise, the delivery by the UK on 29 March 2017 of notice under article 50 of the Treaty on European Union means that the UK will in all probability leave the EU on the earlier of entry into force of a withdrawal agreement between the UK and the EU or, failing that, on 29 March 2019.
20 March 2017
Brexit: What will the Great Repeal Bill do?
The Great Repeal Bill will, according to the UK Government, preserve EU law as it stands at the moment before the UK leaves the EU and allow changes to be made by secondary legislation in order to ensure that it functions sensibly. Though apparently straightforward, the volume and complexity of EU law makes this domestication of EU law a complicated task.
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.
24 January 2017
Legislation required to trigger Brexit
The Supreme Court has upheld the High Court's decision in R (oao Miller) v DExEU that the Government needs prior authorisation from Parliament to give the article 50 notice that will initiate the process leading to the UK's withdrawal from the EU. This briefing explores the Supreme Court's decision, what the Government may do next, the difficulties it might face and the possible implications for other litigation for Brexit.
19 January 2017
The UK's negotiating objectives for exiting the EU
The UK Prime Minister, Theresa May, gave a long-awaited speech setting out 12 objectives for the UK’s upcoming negotiation to leave the European Union. With her 31 March deadline for triggering Article 50 approaching, have we learned anything new?
09 January 2017
Brexit and the environment - moving on beyond the referendum
The UK Government announces a Great Repeal Bill. The resulting transposition of all EU law into UK law leads to a number of questions in relation to environmental legislation.
28 December 2016
The EU-Singapore FTA: a mixed agreement?
On 21 December 2016, the Advocate General of the Court of Justice of the European Union issued an Opinion that the EU does not have exclusive competence to conclude its free trade agreement with Singapore because it is a "mixed agreement".
01 December 2016
Milestone for the European economy - UPC almost ready to come into being despite Brexit
Following the UK's vote to Brexit, it was thought rather unlikely that the UK would ratify the agreement for establishing the Unitary Patent Court (UPC).
01 December 2016
Brexit: Will the UK remain in the EEA despite leaving the EU?
When the UK withdraws from the EU, the most likely legal position is that the UK will also fall out of the EEA and will therefore not be able to participate as an EEA member in the single market. But even if that is not so legally, it may take a long time to persuade the other members of the EEA that the UK remains a participant, during which time the UK will not benefit in practice from the single market.
03 November 2016
Brexit - Trade and Treaties
After the historic vote to leave the EU, the UK must now reconsider its trading relationships with countries around the world. Here, Clifford Chance experts together with Professor Jim Rollo of the University of Sussex, consider how companies should prepare themselves for the changes that are to come, specifically analysing what free trade agreements encompass; what the WTO is and how it works; and what third-state agreements might involve.
22 November 2016
The Employment law implications of 'Brexit'
At first glance, it would appear that the 'Brexit' vote will have substantial implications for UK employment law, and the immigration system in the UK. In reality the extent to which current employment legislation will be affected (repealed, revised, and interpreted) will be dictated by the nature of the 'Brexit' which has not yet been determined.
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.
24 October 2016
The UK’s future trade relationships
Post-Brexit, there is likely to be a bespoke relationship between the UK and the EU, which is likely to be based in form on a Free Trade Agreement (FTA). To recreate something akin to the UK’s current global network of preferential trade agreements, the UK will also need to negotiate FTAs with its other key trading partners.
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.
14 September 2016
Brexit: the constitutional endgame and the need to act now
Service of notice under article 50 of the Treaty on European Union will fire the starting gun on the formal process leading to the UK’s departure from the EU. The High Court will decide in October the much-debated question of whether the Government can choose on its own to give notice under article 50 or whether it needs legislative approval first.
24 August 2016
A comprehensive briefing on timing, process, options and legal implications across a range of sectors. We examine free trade agreements, the implications of leaving or remaining a party to the EU customs union, the WTO, and other models. We look at financial services, migration, corporates, contracts, IP, data protection and a range of other issues.
24 August 2016
Brexit: What does it mean for multinationals?
Following the UK’s vote to leave the European Union, multinationals face a range of challenges. At two recent Clifford Chance seminars in London, our experts shared their views on what Brexit means for multinationals outside the financial services sector, focusing on the business and legal impact.
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 August 2016
The landscape after Brexit
In the aftermath of the UK’s decision to leave the European Union, shockwaves continue to reverberate across both the financial markets and the political landscape. Here, Lord Jay of Ewelme, former British ambassador to France and former head of the Foreign and Commonwealth Office, joins Clifford Chance experts to discuss the legal and commercial realities of the UK moving towards Brexit.
28 July 2016
Brexit and UK PFI/PPP infrastructure projects
In the wake of the 'Leave' outcome of the UK's EU referendum, we consider the potential impacts of a 'Brexit' on UK PFI/PPP projects in the infrastructure sector. Although it is impossible to reach any definitive conclusions due to the continued uncertainty surrounding the terms and timing of Brexit, this note highlights selected issues likely to be of relevance to transactions and to industry participants.
27 July 2016
Brexit - implications for loan documentation: keep calm and carry on
Since the Brexit referendum, some parties have been wondering whether any provisions need to change in their English law loan documentation. Although there is considerable uncertainty as to how and when Brexit might occur and therefore how it could impact documentation, in this briefing we consider some of the potential implications and whether any changes to practice should be considered now.
22 July 2016
Brexit: What next for UK pensions?
One month on from the UK's vote to leave the EU, what's next for UK pensions? In this special 'Brexit' edition of the UK: Pensions Update, we take a look in more detail at the key issues pension schemes and employers should be thinking about both now and in the long-term, pending the UK's formal withdrawal from the EU.
12 July 2016
Brexit - assessing the impact on asset managers
On 23 June 2016, the British people voted to leave the European Union. The next step is for the UK government to initiate the procedures under Article 50 of the Treaty of the European Union, leading to the UK's withdrawal from the EU and, ultimately, to the establishment of a new relationship with its former EU partners.
12 July 2016
Brexit and the energy and resources sector
In the wake of the 'Leave' outcome of the UK's EU referendum, we consider the potential impacts of a 'Brexit' on the Energy and Resources sector. 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 industry participants.
11 July 2016
Brexit: What next for the UK insurance sector?
Following the UK's decision to leave the EU, what can the insurance sector do to protect its interests? This briefing provides a view on how you can contribute to the shape of the negotiations on the industry's future relationship with the European Union and focuses on some short term issues for UK insurers.
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.
29 June 2016
Brexit - What next for environmental & climate change law?
Following the UK's vote to leave the EU on 23 June, we have been considering the possible implications of this vote for environmental and climate change law and practice.
28 June 2016
Brexit and data protection: keep calm and carry on?
Brexit should not distract businesses from their work to prepare for implementation of the EU General Data Protection Regulation in 2018. Reforms are coming with or without Brexit.
28 June 2016
Brexit - What next for planning?
Following the UK's vote to leave the EU on 23 June, we have been considering the possible implications for planning law and practice.
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.
24 June 2016
The tax impact of Brexit: what steps should UK and EU businesses take now?
On 23 June 2016 the UK voted to leave the European Union. Whilst many of the terms of exit are hard to anticipate, there are a number of predictable adverse effects for which preparations can be made. This briefing outlines some mitigating steps that UK and EU businesses can take now.
21 March 2016
Challenges for Europe’s Capital Markets: A legal and regulatory assessment
A vote on 23 June for the UK to leave the EU would result in a radical change in the relationship between the UK and the continuing Member States of the EU (C-EU) which could fracture the integration achieved so far in these markets and forestall the future integration promised by the plans for an EU Capital Markets Union.
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.