On the 23rd August 2018, the UK Government started to issue Brexit ‘no deal’ technical notices.
The notices start to outline scenarios in the event that the UK leaves the EU without a deal. The notices outline arrangements to make the exit as orderly as possible.
These scenarios are a good source of information when business planning around the potential Brexit outcomes.
Below are just some of the technical notices that directly relate to businesses, whether they do or do not trade directly with the EU. Each notice listed has a very brief summary and a link to the full content.
The complete range of notices can be found at https://www.gov.uk/government/collections/how-to-prepare-if-the-uk-leaves-the-eu-with-no-deal and we advise that you review them to see which others may be relevant to your particular business.
Handling civil legal cases
Civil legal case handling with EU – cross border legal handling if no deal
This notice covers:
The UK will no longer have access to civil judicial cooperation between the UK and EU countries
The UK will repeal most of the existing civil judicial cooperation rules and instead use the domestic rules which each UK legal system currently applies in relation to non-EU countries
International agreements would still apply (ie Hague Agreement)
Repeal of Brussels Ia (dictates where a case should be heard in EU), The Enforcement Order, Order for Payment and Small Claims Regulations, The EU/Denmark Agreement (where a case should be heard), The Lugano Convention (civil judicial relationship with Norway, Iceland and Switzerland).
To remain in place: Rome I and Rome II rules on applicable law in contractual and non-contractual matters
Post exit, UK to apply to re-join the Hague Convention (Apr-18)
Repeal of Insolvency Regulation (recognition of cross-border insolvency proceeding). Insolvency practitioners to open a case under domestic EU legislation but the case may not be recognised in particular EU countries. Reversely, not all EU cases raised in the UK will be recognised
Importing and exporting
Classifying your goods in the UK Trade Tariff if no deal
The UK will exit the EU on the 23hr on 29/03/2019 and it is going to leave the EU’s single market and Customs Union.
This will mean the UK will have to meet the same trading requirements as a ‘third county’ under World Trade Organisation rules. This will mean the same rate of duty as WTO members currently pay.
Anyone importing goods into the UK from the EU, or exporting goods to the EU from the UK, will have to comply with customs procedures, where these were not previously necessary. There may be a new UK trade tariff.
The UK will remain, a participating country the World Customs Organisations Harmonised System and commodity codes will remain unchanged as a result. Examples can be seen at classification section
Commercial Road Haulage in the EU if no deal
UK hauliers could no longer rely on automatic recognition by the EU of UK-issued Community Licences. EU countries may choose to recognise that UK-issued operator licences but if not, UK hauliers will be able to use ECMT permits if there is no deal.
Old and new bilateral agreements may come into place.
The Haulage Permits and Trailer Registration Act 2018 puts in place arrangements to allocate permits required for international journeys. International drivers’ licences will need to be put in place.
UK trailers may need to be registered when travelling in their country.
If there’s no deal, automatic recognition by EU countries of UK-issued ‘competent persons certificate – CPC’ will cease.
Hauliers should read this technical notice for details of arrangements being put in place.
Trade remedies if no deal
Currently, unfair trade practices are investigated by the European Commission (DG Trade) and if practices of, for example, unforeseen surges imports, then duties may be imposed. When the UK leaves the EU, it will not have access to this system.
To replace the current process, the UK government is creating a trade remedies system which meets the needs of the UK. The UK Trade Remedies Authority (TRA) will be in place prior to the UK exiting the EU. This will look to protect the UK market from unforeseen surges or subsidised trade.
If an application of unfair trade upheld by the UKTRA, it will will submit a recommendation to the Secretary of State for the Department for International Trade (DIT) who will have the final decision on accepting or rejecting that recommendation.
Trading with the EU if no deal
This notice review the impact of a no deal scenario and how the UK would trade under World Trade Organisation (WTO) rules.
There will be border controls for goods coming in and out of the UK, duties to be paid, along with customs declarations, so increased administration of exports.
This will have an impact on supply chains, both in terms of cost and time.
Before importing from the EU, businesses will need to register for a UK Economic Operator Registration and Identification (EORI) number. Value Added Tax (VAT) and import duties including excise duty on excise goods will need to be paid (see VAT notice). An import licence may need to be obtained for some type of goods.
When exporting, businesses will need to include International Terms and Conditions of Service (INCOTERMS) within their contracts & consider the benefits of contracting with a customs broker and review their goods classifications.
Carriers, such as hauliers, and train, vessel or aircraft operators, will need to make a Safety and Security Declaration for goods moving between the UK and EU.
Exporting GM food & animal feed products if no deal
If exiting with no deal, the exporter of animal feed products to the EU will have to have an established business or representative in the EU (non-EU representation), under the local countries competent authority. Current arrangement details are available from the Food Standards Agency but the EU have yet to issue full directive. UK businesses with approval to export GM feed will also need EU representation & provide details to the EU commission.
Partial applications for EU authorisation of GM food or feed, feed additives; or updates to the list of PARNUTS, at the point of exit will need to have EU representation & details provided to the EU Commission.
Importing high-risk food & animal feed in no deal
Currently, consignments of high-risk food and feed from countries outside the EU must be pre-notified at their point of entry into the EU, using the import module of the EU Trade Control and Expert System (TRACES) system. If no deal, the UK will not have access to the TRACES system.
A new system is being developed in the UK to replace the TRACES system and information on the system will be released Autumn 2018. The new system will look to replicate the current TRACES system.
The EU will be under no obligation to check consignments meant for the UK, so high-risk imports will be checked on the UK border. The goods would have to transit through the EU under seal to be checked on the UK border and enter the UK at a Designated Point of Entry (DPE).
Existing free trade agreement if no deal
Arrangement would be put in place with partner countries so that the UK is treated as an EU member state for the purposes of international agreements, including trade agreements. The government would look to implement bilateral UK-third country agreements from the day of exit.
The new agreements will replicate the existing ones in place as a member of the EU.
If arrangements not in place in time for exit, trade will be under Most-Favoured Nation’ (MFN) basis, (World Trade Organization - WTO) terms.
Under these terms, equal duty rates must be applied to all WTO members.
The UK is looking to put in place a unilateral trade preference scheme for developing countries, which will mirror the current EU preference scheme.
Bilateral agreements are being negotiated and changes to current EU agreements are trying to be limited.
As MFN tariffs will apply, the government will publish tariffs prior to exit, but they can be found at Tariff Look Up tool
Labelling products and making them safe
Placing manufactured goods onto the UK Market if there is a no deal
Regulation around placement of goods will remain unchanged, with continuation of conformity assessment. Goods can bear the CE market for a short period of time and notice will be given when regulation around that changes.
A new UK conformity marking, the UKCA mark, will indicate that a product complies with UK regulations and can be placed on the UK market.
If your goods are conformity assessed by a UK approved body, then where this is required by legislation, you must use the UKCA marking. This means you can place them on the UK market after leaving the EU, but not the EU market.
If you bring manufactured goods regulated under the new approach into the UK from the EU or EEA and want to place them on the market after leaving the EU your status will change from a ‘distributor’ to an ‘importer’, with your company details on the label, conformity checks undertaken.
Placing manufactured goods on the EU internal market if there's no Brexit deal
When we leave the EU the essential requirements (the legal requirements that must be met before a good can be placed on the market) applying to goods placed on the EU internal market will not change. After the UK leaves the EU the results of conformity assessment carried out by UK conformity assessment bodies will no longer be recognised in the EU. This is the case even if the assessment was carried out EU Exit date.
If you are placing a good on the market after EU Exit date you will need to use an EU-recognised conformity assessment body.
You will still be able to use CE marking based on self-declaration of conformity when you are placing goods on the EU internal market.
If you export products to the EU internal market after EU Exit date then they will need to be labelled with the details of an importer based in the EU or EEA. Products that have a label specifying a UK company as the importer of that product will not be permitted to be placed on the EU internal market after we leave the EU, even if the label was applied before EU Exit date.
After the UK leaves the EU, UK-based authorised representatives (‘responsible persons’) will no longer be recognised by the EU. If you use a UK-based authorised representative to place goods on the EU internal market you will need to arrange an authorised representative based in the EU, EEA or Switzerland.
Old approach goods are subject to detailed regulatory requirements and approvals by public bodies. The relevant regulators have produced detailed guidance on goods subject and can be accessed on the link below.
Food labelling changes after Brexit if no deal
The UK has no control over how food labelling changes will be enforced outside the UK. The EU has issued guidance confirming that labelling changes will need to be in place from exit day to export to their markets. You should get advice from your EU importing contact on the EU’s labelling requirements. If you’re exporting pre-packaged food and caseins sold in the EU, you must include an EU address for the FBO or EU importer on your packaging or food label.
If the UK does not achieve recognition from the EU, the EU market will be closed to UK organic certified produce from EU exit date. You must not use the EU emblem on goods produced in the UK unless you have been authorised by the EU to do so. It will be inaccurate to label UK food as origin ‘EU’. UK food should not be labelled as origin ‘EU’. You can continue to use the EU oval health and identification mark on products of animal origin (POAO) produced and sold in the UK until 31 December 2020. You can continue to label all food with the specific country or countries of origin.
Producing and processing organic food if no deal
Logos on packaging would need to change. There would be a grace period to use up existing stock. UK organic operators would not be permitted to use the EU organic logo. UK organic operators may continue to use their control body’s logo. Defra has commissioned research on organic logos used worldwide which will provide evidence for developing any future UK logo.
UK businesses would only be able to export to the EU if they were certified by an organic control body recognised and approved by the EU to operate in the UK. To do this, UK organic control bodies will need to apply to the European Commission for recognition. UK control bodies are not permitted to make these applications until the UK becomes a ‘third country’. Approval can take up to nine months so we are exploring alternative approaches that should speed up this process. As we are retaining EU regulation in UK law, we expect to negotiate an equivalency arrangement with the EU which will allow the free movement of organic goods between the EU and the UK. We will ask the European Commission to discuss these applications in advance of EU exit date.
This guidance should be read in conjunction with Food standards: labelling, durability and composition
Protecting geographical food and drink names if no deal
There are currently 86 ‘geographically identified’ (GI) protected UK product names. These product names are protected under EU legislation. On leaving the EU, the UK will created a WTO compliant TRIPS system (Trade-Related Aspects of Intellectual Property Rights). There may be a UK GI logo.
Businesses may need to apply to the EU Commission to continue to have EU recognised GI status. Business may also want to consider intellectual property protection.
Regulating chemicals (REACH) if no deal
If you’re using, making, selling or importing chemicals in the EU, you need to follow REACH (Registration, Evaluation, Authorisation and restriction of Chemicals) regulations. You must register your chemical substance with the European Chemicals Agency (ECHA) - this body enforces REACH regulations in the EU.
Control of Persistent Organic Pollutants if no deal
The Persistent Organic Pollutants regulations, enforcing the international Stockholm Convention agreement on POPs and the Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on POPs (CLRTAP) will continue under the Environment Agency for England.
Potential new POP substances will be managed initially through the UK chemicals regulatory regime that would replace REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals).
Regulating biocide products if no deal
Biocide products are current registered using an EU IT system, known as the ‘Register for Biocidal Products’ (R4BP3) that is run by the European Chemicals Agency (ECHA).
If no deal, The UK would put in place a stable regulatory framework for biocidal products from the point of exit, with the HSE as the competent authority. Companies who want a biocide product approving for the UK would go to HSE, instead of ECHA. A process for handling applications will be put in place at the point of exit, whilst an IT system is being developed.
Classifying, labelling & packaging chemicals if no deal
The UK will establish an independent standalone chemicals regime. At the time of exit, the UK will adopt the Globally Harmonised System (GHS) for the classification and labelling of chemicals, the same system as the EU.
The UK classification and labelling regime would be based on the existing EU regulatory regime in order to provide continuity for businesses. Companies operating in the UK dealing with HSE in place of the European Chemicals Agency (ECHA).
Duties on UK manufacturers, importers and downstream users to classify, label and package the substances and mixtures they place on the UK market will remain as they are currently.
Labelling requirements would remain in place, including the principles of precedence for the different labelling elements, the location of the label on packaging, and exemptions where available. The arrangements for dealing with both transport and CLP (classification, labelling & packaging) labelling are unchanged.
The packaging requirements stay the same, including those for child resistant closures and tactile warning devices.
Testing arrangements will remain the same.
Manufacturers and importers will also continue to comply with the duty to notify, but now to the HSE.
Health marks on fish, meat and dairy products in no deal
Currently, you cannot produce or process meat, fish or dairy products for sale unless your establishment is approved by the Food Standards Agency under EU regulations. The produce must carry a health mark showing this approval. The UK will not be entitles to use these health marks when no longer an EU member, so the marks will need to change. The Food Standards Agency is proposing what the changes to the marks will be. There will be a consultation period after which, industry will be notified of the agreed changes. The revised marks will need to be used when exporting to the EU or other countries. The old mark may be acceptable for a short period for sales inside the UK. DEFRA will inform countries that the UK export to, of the revised health marks.
Health marks on meat, fish and dairy products if there’s no Brexit deal this should be read in conjunction with this guide
Export & import of hazardous chemicals (PIC Regulation- ‘prior informed consent’) if no deal
The UK would establish an independent standalone PIC regime so that the UK can continue to meet its international obligations under the Rotterdam Convention. UK exporters would continue to notify exports of listed chemicals via the Health and Safety Executive (HSE). UK-based companies exporting or importing listed chemicals (including to or from EU countries) would need to comply with the requirements of the UK PIC Regulation.
UK-based companies would no longer have access to ePIC and would need to use the UK’s new system that would be operated by the HSE to notify exports of listed chemicals from the UK
Meeting business regulations
Public Sector contracts if no deal
No longer have access to OJEU/TED so an alternate free to access contract finder platform to be created and a UK e-notification service
Procurement principle to accede to the WTO Agreement on Government Procurement (GPA)
UK Suppliers can still access EU contracts on OJEU/TED
Copyright if no deal
If there is no deal, the UK’s will continue its membership of the main international treaties on copyright to ensure that the scope of protection for copyright works in the UK and for UK works abroad.
However, there will be no obligation for EEA states to provide database rights to UK businesses.
Portability Regulation will cease to apply to UK nationals when they travel to the EU there will be a restriction to online content services.
UK Collective Management Organisations will not be able to mandate EEA Collective Management Organisations.
There may be a delay in the ratification of some of the protection legislation, so businesses transferring accessible format copies between the EU and UK may not be able to rely on the EU Regulation.
The Intellectual Property Office has summarised considerations for businesses at factsheet on intellectual property rights and EU exit
Exhaustion of intellectual property rights if no deal
The UK will continue to recognise the EEA regional exhaustion area and will ensure that parallel imports of goods, such as pharmaceuticals, can continue from the EEA
Businesses may find that they need the right holder’s consent to export intellectual property-protected goods that have been legitimately put on the market in the UK to the EEA.
Anti-competitive & mergers if no deal
The UK will no longer be part of anti-competitive EU regime but will still abide by principles under UK regulation under the UK Competition and Markets Authority & move this in UK statutory law.
UK infringement will no longer be investigated by EU courts. UK regulatory body will undertake the UK aspect.
The impact will be that some mergers will need to be scrutinised under both EU & UK law when there is an effect in both markets and anti-competitive claims may have to run parallel claims in UK and EU markets.
Patents if no deal
The relevant EU legislation will be retained in UK law under the EU Withdrawal Act 2018.
The existing systems will remain in place, operating independently from the EU regime, including supplementary protection certificates.
The conditions under the Unified Patent Court will operate are still under negotiation.
Legal professional privileges for EU Patent Attorneys will remain in place.
Trade marks and designs if no deal
There will be an EU equivalent UK trade mark that will be enforceable in the UK.
There is work to be done with the World Intellectual Property Organization to provide protection to the UK after March 2019 of trade marks and designs filed through the Madrid and Hague systems and which designate the EU.
Existing EU trade marks will be migrated to the UK equivalent trade mark.
The protection of existing unregistered Community designs in the UK will continue through a new equivalent right which arises automatically and with no action required by the right holder.
Accounting & Audit if no deal
Accounting & audit regimes to remain for UK firms but companies with EU subsidiaries no longer have exemptions and audit will have to comply with local member state audit conditions.
EU auditors’ registration not automatically recognised after 2020 & may have to undergo an aptitude test (ROI exempt).
Providing Services, including those of a qualified professional if no deal
Recognition of professional qualifications - the Mutual recognition of Professional Qualifications (MRPQ) directive will no longer be valid. This means that non UK nationals coming into the UK to work with professional status will have to seek validation of their qualifications (vets, architects, doctors, dentists, nurses etc). Those that have recognition prior to leaving EU will be unaffected. The Govt is working with regulatory bodies on practical solutions. UK nationals will have the same issue when looking to work in the EU, where member state recognition will need to be sought.
There are separate regulations for lawyers, but a similar scenario.
UK businesses providing services in the EEA will no longer be covered by the EU Service Directive.
SOLVIT network no longer available to UK. SOLVIT is a resolution process that bypassed lengthy legal processes when looking to resolve disputes for business & individuals.
Structuring your business if no deal
EU nationals can still be UK business Directors. UK nationals may need to comply with EU local nationality restrictions, where applicable. UK businesses that have an EU principal place of business may not have their UK Ltd status recognised.
Cross border mergers can no longer take place under the same legal principles but can still be done under private contractual means.
UK investors in EU businesses may face restrictions (ie UK qualified auditor may not be the majority owner of an EU audit firm)
European Economic Interest Groupings, European Public Limited-Liability Companies (or Societas Europaea) and European Groupings of Territorial Cooperation will no longer be able to be registered in the UK
Money and tax
Banking, insurance and other financial services if no deal
Banking systems will change as the UK loses access to TARGET2 and the Single Euro Payments Area (SEPA). There may be changes in the time it takes to transact in Euros.
Credit card charges between the UK and EU may increase as the UK will not fall under the EU surcharge ban.
EEA firms may operate under a ‘passporting’ system which will extend for 3 years after exiting the EU.
Consumers are protected under UK’s Financial Services Compensation Scheme (FSCS) for some EEA products. How this protection will work after Brexit is under consultation.
EEA clients may not be able to access the services of UK investment banks.
The Bank of England has published a document setting out its approach to financial services legislation under the European Union (Withdrawal) Act 2018.
The FCA has published information about the Temporary Permissions Regime, including what action firms should take now.
The PRA has published information about the Temporary Permissions and Temporary Recognition Regimes, including what action firms or FMIs should take now.
VAT for business if no deal
The government will introduce postponed accounting for import VAT on goods brought into the UK.
For parcels valued up to and including £135, a technology-based solution will allow VAT to be collected from the overseas business selling the goods into the UK.
Distance selling arrangements will no longer apply to UK businesses and UK businesses will be able to zero rate sales of goods to EU consumers.
Where businesses are selling their goods in a EU country, UK businesses will continue to be required to register for VAT in the EU member states where sales are made in order to account for the VAT due in those countries
For provision of services, the main VAT ‘place of supply’ rules will remain the same for UK businesses.
Businesses that sell digital services to consumers in the EU will nolonger have access to the MOSS system but will be able to register for the ‘MOSS (Mini One Stop Shop) non-union scheme only after the UK exit date.
UK business will no longer have access to the EU VAT refund system. UK businesses will continue to be able to claim refunds of VAT from EU member states by using the existing processes for non-EU businesses.
UK businesses will be able to continue to use the EU VAT number validation service to check the validity of EU business VAT registration numbers. UK VAT registration numbers will no longer be part of this service. An alternate UK system for UK VAT number validation will be developed.
Personal data and consumer rights
ICO (Information Commission) has issued guidelines if no deal
Currently under GDPR where organisations are only permitted to transfer personal data outside the EU if there is a legal basis for doing so. Transfers of personal data within the EU are not restricted.
After exit, GDPR would be written into UK legislation but business would continue to be able to send personal data from the UK to the EU and EU into the UK if an ‘adequacy decision’ is taken by the EU that the UK data standards are equivalent to those adopted in the EU. But this adequacy decision may not be made in time for exit date.
The impact will be there are legal issue with data transfer after the exit date when there may be a gap in legal provision.
ICO (Information Commission) to issue guidelines if no deal.
Geo-blocking of online content if no deal
Geo-blocking is technology that restricts access to Internet content based upon the user's geographical location.
If no deal, the UK version of Geo-blocking regulations will be repealed.
But UK businesses that want to trade in the EU must comply with the EU Geo-blocking regulation, so not discriminating against customers in the EU – ie French & German customers need to be treated the same.
Consumer rights if no deal
No immediate change but businesses to review changes to EU consumer legislation. Disputes currently comes under Alternative Dispute Resolution platform. UK will not have access to this platform but UK looking to replicate something similar. Businesses need to remove reference to the resolution platform from their websites.
Protection when purchasing travel packages from EU companies no longer in place.
Secretary of State taking responsibility for new textile name or manufacturing tolerance.
UK business now responsible for the labelling for EU imported footwear.
Protecting the environment
Industrial emissions standards if no deal
Industrial Emissions Directive (IED) & Best Available Techniques (BAT) frameworks will be written into UK law but a second layer of legislation transferring regulation out of EU into UK bodies.
Environmental standards ‘green Brexit’ if no deal
Transfer of environmental legislation into UK law with first UK environmental bill passed in 2018 to set out a 25 year plan.
A new body to be created to regulate environmental issues in England.
Trading in Ozone depleting gases if no deal
Currently there is cap (quota) on the amount of ozone depleting gases a business can trade or use, regulated by the Environment Agency in England and HMRC on border control.
Similar standards would be applied but the UK would set its own quota system, regulated by the Environment Agency, with a change in IT reporting system.
Businesses importing or exporting ozone depleting gases will need to apply for a quota
The target of a 79% reduction of fluorinated gases (greenhouse gases) against 2012 usage will remain in place
Travelling between the UK and the EU
Mobile phone roaming charges if no deal
After exit, roaming charges in EU no longer regulated so surcharge free roaming no guaranteed, but a £45 per monthly bill to be imposed & data alerts.
The impact is a possible rise in communications costs for staff using mobiles in EU & possible issues around Northern Ireland/ Southern Ireland border
Workplace rights if no deal
The EU (Withdrawal) Act 2018 brings across the powers from EU Directives. This means that workers in the UK will continue to be entitled to the rights they have under UK law, covering those aspects which come from EU law
There will be some changes around employee claims when their EU based employer becomes insolvent. UK and EU employees that work outside the UK in an EU country for a UK employer may still be protected under the national guarantee fund established in that country.
European Works Councils creations will also be effected.
Additional notices are available at:
- Employment Rights Cover Note
- Affirmative Employment Rights SI
- Negative Employment Rights SI
- Health and Safety SI
- Workplace rights if there’s no Brexit deal
Disclaimer: The information provided is meant as a general guide only rather than advice or assurance. The Growth Company does not guarantee the accuracy or completeness of this information and professional guidance should be sought on all aspects of the business planning and response to Brexit. Use of this guide is entirely at the risk of the user. Any hyperlinks from this document are to external resources not connected to the Growth Company and the Growth Company is not responsible for the content within any hyperlinked site.