In a joint initiative by the British Chamber of Commerce in Denmark (BCCD) and the Danish-UK Association (DKUK), Bernardine Adkins joins a panel discussing the latest Brexit updates and looking at how companies can navigate the complicated landscape and continue to trade.
Gunnar Larsen: Good morning everyone. Welcome to this webinar UK EU-Exit – What Next. Pleased to see so many of us tuned in and that we have such a strong panel of speakers and advisers in the room today. My name is Gunnar Larsen and I am from the Danish UK Association and on behalf of our colleagues from the British Chamber of Commerce in Denmark welcome and thank you for being part of this.
Just a few house rules for this event. Firstly the webinar will be recorded and will be shared with you afterwards. The recording will only be of the main first hour part of the webinar, once we go into the breakout rooms later that will not be recorded and re-shared. However on the practical matter once you get into the breakouts and if there are any specific questions you need to follow up on with the people in the room then come back to me or any of my colleagues from the two chambers, the British Chamber of Commerce or the Danish UK Association.
Moving on I would like to introduce you to our moderator so the whole topic around UK EU what next, well we found we may have had some ideas as to what next going on right now however there is still a lot to be discussed we can see and therefore and we already knew that was going to be happening once we planned this event a month ago that there are still going to be a lot of uncertainties. There are still going to be a need for a lot of reaffirmation and there is still going to be a lot of confusion and questions as to how we do that because it is new to us as well that is whether you are an EU country like Denmark or whether the United Kingdom who is no longer part of the EU we need to find out how we keep on trading and that is the whole purpose of this webinar is that we give a platform where you, as an individual, as a company who are trading across the north sea you can still find ways you can do so and that is why you have an organisation like British Chamber and the DKUK to help facilitate that.
Today we have a panel of three of the leading legal firms from Denmark and United Kingdom and we have it moderated by Casper Barful. Casper he is the country's director of Department for International Trade so the UK's department that helps promoting trade and investment to and from the United Kingdom. He is on a daily basis based in at the British Embassy in Copenhagen. He joined the Embassy back in 2018 but already then came with 30 years of experience from private sectors and indeed have also had a lot of experience about doing international trades he himself has been outside of Denmark for a good 14 years, in Germany and for that sake also the UK.
So having a person like this as a moderator really puts us in a good place because DIT of course one they are advising us UK companies but also advising Danish companies they want to invest in the UK and therefore some of the problems varies.
Now just a quick on the house rules I can hear this little bit of a feedback. If I can ask everyone please to mute your microphones that will make it a lot easier. There will be a time for questions on this so Casper he has set up a number of questions he knows is very pertinent, very relevant as we are standing right now. However, if you have any questions at that very moment in time that is very relevant then please do field them in through the chat function and I will keep an eye on those and I will field them to Casper. If not, we will try to revisit those questions during the Q&A at the end or in the breakout rooms. More about the breakout rooms on top of the hour, Kiera from the British Chambers, she will come back and tell you all about how that works. But with this, Casper, I ask you to unmute yourself and take it from here please.
Casper: Thank you very much Gunnar and thank you for giving me the opportunity to moderate this session and thank you for hosting the session at DIT what we have been asked to do for the past couple months is to help keep business moving between the UK and Denmark but of course colleagues across Europe has had the same ask so we have very actively been participating in these kinds of events. We also have two very large events so if you go to the .gov.uk homepage or DIT's homepage you will see that we have some mass outreach events planned for this week- I think Tuesday and Wednesday from memory.
The format today is what has been described maybe for the lack of a better word but as a fireside chat but I will be moderating and asking questions to our three participants all with legal background. I think I heard a dog barking in the background here. Sorry for that but this is what happens in these times that we are currently in.
First of all we have Andrew Poole from the law firm Gorrissen Federspiel and then I am hoping that we have Bernardine Adkins. I do not seem to see her on screen "Are you there Bernardine?"
Bernardine Adkins: Yes, I am here, sorry I am here.
Casper: Okay. No worry that is just my screen. I just wanted to make sure and Bernardine is from the legal firm Gowling and finally we have Tyge Rasmussen from Kromann Reumert.
What we want to focus on here is business preparedness for end of transition period and those are sort of the main questions that I am going to talk about. Of course, it is impossible not to just touch very briefly on where are we and I am sure that all of you who participate in this webinar have a strong interest in end of transition period which is what we call it because BREXIT happened by the end of January this year and now we are coming to the end of the transition period and we will all have seen that the EU and the UK have decided to continue negotiating until the very last hour. There are still some pretty substantial stumbling blocks or distances but I think that this is just my personal observation to the extent that I am allowed to have one as a UK civil servant. I think there has been some or quite substantial progress in a lot of areas but maybe I just start with the first question a little bit around your take on where we are in the current negotiations and your understanding of what the stumbling blocks are. Maybe Bernardine you want to start by sharing your views on that subject?
Bernardine Adkins: Yes, absolutely. So I think it is interesting to reprise where we are. First of all we have left the EU. We left them in January and so we have been also living in a fiction for the last year pretending we are still in the EU, a fiction of law, and that fiction comes to the end at 11:00 UK time on December 31 and so what we have been doing in the last year negotiating the future arrangement and the future arrangement was last largely what it should have been or what it was intended to was set out in the political declaration. That was the framework that was agreed under Article 50 and so that was largely signposted what was going to unfold. Well since then there have been various departures as to what particularly the UK envisaged with that political declaration in putting flesh on that and now we really are five minutes to midnight in terms of what are we going, you know, what is the timeline I think is the first question irrespective of what is in the content and the timeline is very, very tight indeed because certainly from the UK perspective what we keep forgetting is that unanimity is required for this agreement so it is all very well that we agree at the moment with the European Commission it then needs to get unanimously through 27 member states, it also needs to get through the European Parliament. And so the UK bit is actually really very simple, we are just going to ram it through European Parliament you have got the Government has the majority of 80 so it could ram it through within 24/48 hours in an emergency sessions so you cannot help but wondering is our Government no playing the clock slightly. So I think, are we going to watch some see some very, very interesting fancy footwork as to how we are going to get something that is legally binding within that period of time and frankly I cannot see how it can be done. And so what people have been saying as well we can have provisional application if we get an agreement, we can agree that provisionally apply, however, the European Parliament has to give it oversight and this is will be a very complex arrangement. It is apparently allegedly 700 pages long and the European Parliament signals, back in the day, if we do not get to see it by October we will not pass it. Please you cannot forego that democratic oversight. So I fail to see how as people are saying we will have an agreement and it will provisionally apply because I think the European Parliament as we say in Britain would throw its toys out of the cot if we do not do that. So query whether the situation we are in at the moment will everybody not agree politically legally I think it will be a very interesting situation. Will we not agree to have the current situation, the status quo, rollover and give ourselves some more time. And I think the British Government will probably quite be relieved at that because it gives everybody more time to finish the carpark, the trailer park in Kent or the Farage garage as it is being called by the locals and other details practical details like that. So that is where we are in terms of timing but what is the future agreement likely to contain and I would say to you to those of you whilst very, very frightened of a non-negotiated deal as it is being called or as the Government is currently calling an Australian style deal frankly they might as well call it Narnia style deal or a Sierra Leone style deal it is a meaningless expression. It is a piece of marketing to say that 'Oh it is a nice cuddly familiar thing' it is just we all like Australia, we all feel comfortable it is a nice comfortable landing place and this weekend Boris Johnson was describing such a non-negotiated deal as a 'it has a clarity and simplicity in the approach which has its advantages'. Well such a no deal is basically we would have no arrangements with the EU and we would fall back onto. There are no such thing as WTO terms. That is, WTO terms is very much the basic plumbing of how we would operate that we would basically be setting a tariff, so there will be tariffs as between ourselves and the EU, so that would be a no deal, but what if we do get an agreement we will have is a very very hard Brexit indeed and so yes we would get quota tariff and quota free access to the EU, but the UK would be very very much a third country and that is a mind-set which I am afraid it is fascinating to watch, clients need to get into the mind-set. We are now the equivalent of a US or what Canada was before CETA (Comprehensive Economic and Trade Agreement) or Japan was before the free trade agreement. We are no longer, there are a lot of freedoms which we did not even see and we took for granted that have gone so there is a lot we have to really go back to zero as to how we are going to be and so many of the preparations we have to do them in any event, so much of these changes, most of them have to be done in any event, so those of you who are sitting, waiting, saying well let us see if we get a no deal or not, I would say no you need to be moving now irrespective of what we come up with. So where are we at the moment. As I said it is a hard Brexit. It is probably the hardest of the hard and also services by in large are not covered and will probably come onto what is happening with services, but they're not covered so it is very much in and around goods and so what are the sticking points, three of them we all know the level playing fields, governance and fishing.
I will mention fishing first to dismiss it quite frankly. What is it about fish and I looked up the figures last night, government figures. 747 million GDP in fishing. We are 217 trillion GDP which is probably 0.000%, 3% of our GDP, 12,000 UK people involved in fishing, 5,900 boats. Why are we talking about fishing. It is because we all choose our battle grounds. The UK has picked a battle ground of fishing which is where it has the most advantage because it is basically giving access to its natural resources, 200 coastal zones and that is where it has the maximum leverage. So of course it has left it to the end. In the political declaration it was supposed to be resolved in July and the EU wanted that resolved first and of course the UK have left it to the end and of course it is immotive. Its territory, it's Britain, global Britain out in the seas and it's great news to be over the headlines and so it has been fantastic following all immotives and we have seen this Daily Mail and the most awful awful headlines this Sunday. Merkel (Angela Merkel) wants Britain to "crawl across broken glass" that was not a quote by Merkel.
So fishing is great fodder for the masses and it will stay there I think, but ultimately that is going to be a numbers going, that will be resolved. Governance again, this will probably be resolved because it's about dispute resolution. Of course the EU in its, would like the European Court of Justice to resolve the issues. The UK will wish for arbitration, quite right. That's likely to be resolved, but the big, big philosophical difference between the two is in relation to the level playing fields. Normally in any trade agreement as you know you have a regression, basically you agree I'll hold my standards at this. We will not regress back.
The EU is now saying and it probably came as a bit of a surprise to the British, we need a temporal alignment so if our rules, if you UK, you've told us you're going to de-regulate, if you start to tank your regulations in certain specific areas remember, the newspapers are telling it's everywhere, no it's in specific areas, competition state aid, social employment standards, environment, climate change, tax, if you tank your standards, we want to be able to move quickly, instantly and I'm afraid given the eternal market bill there has been trust, has been absolutely lost, the fact that this government was seen to be walking away from a legal commitment it made in January of this year. The trust has gone so the UK EU wants something very very real and that is where the discussion are and who knows what is to happen as to whether they can absolutely resolve that point, so yes 95% of this agreement maybe done and it maybe being translated, etc., but is this last little bit a fundamental difference of philosophy. UK is saying this is dreadful, how dare you suggest that you want to control our laws, our sovereignty, whereas EU is saying, listen we can't let the UK industry into our market free competition if you have an unfair cost advantage because you have tanked and you have de-regulated your rules, which essentially is what you said Brexit is all about, so I've probably spoken for too long, but there is so much detail in there. Hopefully that gives you a birds eye view of what is currently going on.
Casper: Thank you Bernadine certainly feels like I pressed a button there and you had something to share again. I am not going to comment on sort of the angles and the views and the motives behind, but I do think that you gave a relatively accurate description of where things are in terms of symbolism and so forth again as a UK civil servant, I'll refrain from commenting on any of it, but I have been looking at some numbers as well and I would not certainly dispute the numbers that you were referring to.
Tyge you have a hand up, please go ahead.
Tyge: Thank you Casprr [unclear 16:53] and Bernadine I agree with your analysis, it was very clear. Just a few follow-up points on my side.
One of you points you made is that it's worth preparing anyways and notwithstanding we're going to have an agreement or not. That is a very relevant point. First of all we don't know at all if there's going to be an agreement and secondly as you also mentioned, Bernadine, we don't know how the content of the agreement is going to be. It might very well end up being a light agreement, so maybe certain sectors are going by the trade of goods agreement and certain sectors are not and for that reason everybody should if they have not already sit down and prepare and maybe make a supply chain analysis and look at what our touch points are directly or indirectly to the UK market and where it might be touched by Brexit, so I just want to follow-up on that point.
The next thing is also the level playing fields, just started to add a bit flavour on that one, is that the single market is not only about rules and regulations which many people might think, is an entire eco system of governing bodies and registrations and systems based on something like the reach which is the register for clinical products used within the European Union that is more than 23,000 chemicals registered there and if that is not part of the agreement which seems not to be the case then the UK importer of the chemical products will have to rely on a domestic system and the European Union company exporting to the UK market will have to register with that and all the costs belonging to that and that raises the question if there's any room left for low volume products in sectors hit by that and is just a small fragment of what's comprised by this agreement and the effects that it might have.
Casper: Thank you too, I think, I mean you do touch upon one thing which is really important and that is to get the message out to all companies trading with the UK and to talk to them and remind them that preparations are needed and I guess when you are mentioning chemical substances register with 23,000 substances, the way that that's in a way going to be dealt with is of course by businesses taking action and asking questions and pushing ahead because that means that the government will be made aware of where the most urgent points are in terms of what needs to be resolved, but I think again also from a UK side, I think it's fair to say that irrespective of what will be there on 31 December where there is an non-negotiated outcome or negotiated outcome there will still be work to be done into the new year. Maybe I want to go on with some more practical questions or talks here.
One thing, I mean we talk a lot about movement of goods, we talk about movement of people, we talk about data equity and so forth, but of course having three legal companies here maybe Andrew I can get you to touch a little bit upon commercial arrangements and what people need to be aware of and maybe put that into perspective of either a non-negotiated outcome or a negotiated outcome so what you think about the areas that companies need to focus on here and how they need to prepare.
Andrew: As has been touched on earlier we just don't know what's going to happen. No deal or no deal or negotiated or non-negotiated as you've just raised. So I think what would be advisable would be for companies to look at their contracts as been raised before as well and looking at whether they still fit, they would still fit after the end of the transition period, such as any references to EU law or EU authorities and any assumptions that the UK is still a member of the European Union as has been raised before about the ..., being a member of the EU is being part of an eco-system, so it may not be as obvious, there maybe quite implicit in the contract that's been agreed between the parties whether there is an issue which could be affected by the transition period coming to an end.
Also issues on potential import duties, that may not be raised in a contract already. If it isn't it's something to consider with the counterparties and maybe consider issues such as eco terms if they haven't been considered already.
Also currency, we don't know what the exchange rates will be like after the end of the transition period so if it is appropriate to maybe have some clauses which sets the exchange rate, that maybe useful. Also it would be good to have an overview of jurisdiction I would suggest as the EU regime for that will fall away after the end of the transition period, except for cases which have gone before the end of the transition period, so we will have lost that, things are much less certain than maybe the Hay convention, but there'll be a need of an exclusive jurisdiction agreement and-and may not be appropriate in all circumstances.
Casper: Andrew we are losing your sound a little bit. Don't know ...
Andrew: I don't know when you lost me, but I was talking about jurisdiction clauses and it maybe an idea to look at those and whether exclusive jurisdiction clauses will still be appropriate under the Hay Convention or even going away from Court litigation and thinking about arbitration. Arbitration is much more flexible than Court litigation and it's not as effected by the EU regime as Court litigation, so there would be some consideration.
Casper: Thank you very much Andrew. So just apart because you touched upon some other areas than perhaps just directly the legal arrangements that you have in place with your counterparts, but I mean certainly and it's been talked a little bit about before. There will be customs clearance on the border between the EU and the UK and that is something that all who are trading will need prepare on.
A subject which has been very hot at some point, but it's gone a little bit into the background, probably also with the agreement around the withdrawal agreement, but it's certainly also a question that we receive from time to time and I know that you've been looking at this Bernadine is the Northern Ireland situation irrespective of, but can you just give a very brief description of what arrangements are in place and of course also for those dealing with Northern Ireland, what things should they be aware of and what should they observe.
Bernardine Adkins: Okay so in brief the situation with Northern Ireland and the way Northern Ireland from an EU perspective as being the equivalent of fishery is it was something where there was a certain advantage because it was not possible under the Good Friday or Belfast Agreement as it is also called to have had a land border because essentially peace was achieved in Northern Ireland by essentially wiping out the border as between the Republic of Ireland and Northern Ireland. So the UK would have been in breach of its obligations under that treaty if it was to put a land border in that, so customs border on that land border and also frankly it's an impossible border, there are 300 crossings that are formal ones, probably a 300 informal ones, so it was pretty much an impossible border to man and so what essentially the, this current government agreed was to put the border in the Irish sea and so that was also agreed, all agreed under the Northern Ireland protocol and any disputes under the Northern Ireland protocol would be agreed by the joint committee and so what is very, but there's obviously a lot of ironing out because it's complicated, there's an awful lot of track trade that goes between Great Britain.
When we say Great Britain we mean the United Kingdom without Northern Ireland and so a lot of unhappiness that Northern Ireland while it was going to stay in the regulatory regime of the EU, it would also still be part of the UK for customs purposes, so what is very very welcome is last week, there has been agreement within the joint committee as to how and it's very very temporary I have to say, but it gives people, buys people some time as to get used to these various formalities and to quite frankly, they're going to have to change where they procure things, especially in the fields of agri-foods, so it's largely a recognition and easement up for 3 to 6 months whereby goods travelling between Northern Ireland and Great Britain will not be subject to a whole host of formalities which would be politically unacceptable, so that is a very very welcome move and also the very welcome move was around state aid because under the protocol because the way it was drafted, it was a draft in quite a hurry, is that essentially it was worded in such a way whereby if the UK introduced state aid provisions and they were to affect trade in Northern Ireland and obviously it would affect trade between in the EU the EU would still have sight and able to overview the grant of UK state aid and that was completely politically unacceptable and fair enough to the UK and so again agreement has been, the EU has agreed that it will take into account the fact that it will only apply these rules in a circumspect way, viz-a-viz Northern Ireland and those are two big big issues which meant that the UK, as unilaterally said, we are going to remove Part 5 of the Internal Market Bill, which is the part of the bill which was basically offending its obligations under the withdrawal agreement, so that is very very welcome news.
Other people will say actually that de-risks from a political perspective, the possibility of a no deal. Hopefully not, hopefully we still do get a deal, but what is good is that there are going to be easements in place that people need to be aware it is only a limited window of opportunity and it largely does apply to agri-foods and the other thing is time and time again we've seen people saying aah great, we've got some sort of hole there as between get the products into the Republic of Ireland, pop them into Northern Ireland because you've got no land border and then you're away into Great Britain, you've got a hole there, but it is quite clear from going to the text and there's quite a lot of them of various declarations, they are not going to allow that sort of, that hole to arise and you really do have to establish if you're importing goods from Northern Ireland to Great Britain, you are somebody who is absolutely established in Northern Ireland, these are products and the fruits of Northern Ireland, so people, you think you've got a window there, you haven't got one, so please don't think you could start that diversion because I always say if it looks too good to be true, it's because it's too good to be true, so please people do not think of Northern Ireland as being some weak way into Great Britain or vice versa or into the EU, it's not, so that's where we are in Northern Ireland.
Bernadine Adkins: Casper we need you to unmute. Your mic is on mute.
Casper: Oh yeah that was, that was one of the classics here. So we've got unmuting and legacy hands on what's happening all the time. Sorry Bernadine, thank you very much for that. I thought it was very helpful. It's something that's gone a little bit into the background recently, but as you mentioned there are some agreements in place and I think one thing which is important to remind us all of here is that the border between Northern Ireland and the Republic of Ireland is not sort of a back door, in and out or between the UK and the EU. Now staying on the, well again I mean sort of just summarising maybe some of the key things about movement of goods which is really important, you need to make sure that you have a UK importer and that as an exporter you need to apply for this so called EORI number. You need to get a customs intermediary and you need to now make sure that you pay VAT and you need to have or you probably, your importer will probably need to apply for a duty deferment account and then as Andrew was talking a little bit about, consider your commercial arrangements. Again standard wise also refer to .gov.uk/transition where you'll find there a host of information from Her Majesty's government.
Now moving on to sort of another subject, one thing is physically moving your products across, but of course what you need to think about with your products now you were talking about chemical products, but maybe you do need to talk a little bit about also certifications and other things that you need to be aware of, potentially also contribution from Richard can you share a little bit of advice in terms of what companies should be focusing on in these areas please.
Tyge: Yes thank you I can do that and that is the nature of things going to be a bit more on a high level because this is a highly complex and technical area, but basically as of today and as mentioned earlier, the EU single market is a lot of regulation and an entire eco system and as of 31 December 2020, UK is going to depart from that and that also has an effect and marking and prior compliance and product requirements because one of the cornerstones in the single market is that to a great extent the requirements are the same, so that we assure that the products can move freely across the borders and after 31 December 2020 that is no longer going to be the case. Some arrangement has already been made, for instance, the CE Marking has been informed that it's going to work one year ahead, so it's going to be onto 1 January 2022, but nevertheless there's going to be a paralegal booked who will have to look into it to report to the UK market and that will be where there are some particular UK requirement in place with the UKCA government that are governance boarding and it's important as an exporter that they do look at those rules and see if you comply with those and in practice your compliance department will have to look into whether any requirements for your products and if there are of course you have to comply with them if they export to the UK market because you as an exporter is liable to ensure that you comply with those products and then off top of that, you mentioned Casper, the origin of products that is in particular relevant also, but when it comes to duty and duty requirements that you have to get the paperwork in place, there's going to be an entire paper trail you have to have in place in order to be able to export those products.
So that is likely from an overall perspective that the changes and then if you look into how to deal with this then of course you have to monitor whether the rules in your particular area is changing and the product requirements are changing, so that would come down to, I don't know maybe your compliance department would have to follow the rules and regulations on that side and on top of that then Andrew talked a bit on it, but that in your contract, you need to handle how you deal with this and you could do that by agreeing that contractually it is not a defect if you can say your products only comply with EU regulation then it's not a defect if it's not complying with the UK regulation, but that is of course a civil law thing and that is when you as a contractor party and that doesn't move the risk of you being in violation of a public UK regulation, but also what it seems some of our clients have done is that they've inserted a burden of change of law clause and say okay, if the product requirement change from what we know today or the EU standard, they would need to renegotiate both the requirement of products, but also price and then maybe if it's a major change, they might also have to look into your lead times and see if it can actually comply with that. So maybe you need to consider whether you need an escape clause like that in your contract.
Casper I think you're mute.
Casper: My God, sorry yes once again I did it, so I need to, even though I set my mouse as a reminder, so I think there was some important points here and what is again sort of in terms of structure in your heads if you were trading, think about the actual action of moving your product across the border but also thinking about what kind of rules and regulations and certifications and approvals apply to your specific product and dig into that, that way you will be able to continue to move your product between the UK and the EU.
Bernadine I think you had your hand up [unclear 35:41] again.
Bernadine Adkins: Yeah talking about a little practical point of what we see on the ground. What has happened is the UK has basically flipped over EU law and basically said this is now retained law, UK law and they've scrubbed out EU and put in UK and so we're seeing a lot of glitches and things are not making sense as they should in the rules, so don't necessarily if you find the rules aren't suiting you, it may be because they hadn't really been appropriately carried over or adapted. In those circumstances, contact the regulator. The UK government's civil servants are really in listening mode at the moment, this is a fluid situation, they want to keep trade open, so please do contact your regulator and say yeah and say look if we see that you're now requiring us to have an authorised representative in the UK, is that right and you will find that there's a lot of informal guidance that is really really helpful and really friendly and they may actually say whoops you're right, actually we'll give you a window for 12 months, etc., so please do engage with your regulators. If you're finding there's something there that is an obstacle, don't just simply say rules is rules, you may find there is easement and movement to keep that trade open. Thanks.
Casper: Thank you very much for that Bernadine and also if you do not know who you're regulator is, please get in touch with us at the British Embassy in Copenhagen DIT and we'll be there for you to go knocking, knocking on all, will go knock some doors in London and see if we can help you hook up with the right people in London and as imperfect as the situation maybe, I can reassure you that we are now part of the registers government, but as Bernadine was saying very very keen to make sure that we keep business moving.
We've been talking about products specifically, but of course there is the question of people. Now Andrew you're a UK citizen working in Denmark, living in Sweden, so I think you're well positioned to address this subject. Could you talk to us a little bit about what things will look like in terms of movement of people both in terms of business travel, but maybe more importantly in this form about what do we do when we move people across to our UK subsidiary and what should we be aware of, so if you could enlighten us a little bit on that Andrew please.
Andrew: Of course. Well the simple thing is that at the end of the transition periods, people need to be in the country where they want to be. If you're an employer, it's going to be much harder to employ people outside, it's not going, you're not going to be able to employ people on the same terms as you can now after such transition period, so it makes sense for employers or employees to get everything they can, or the evidence they have to show that they are in the particular country that they want to reside in before the end of the transition period and also for employers to assist them with that. Potentially even helping them to move before the end of transition period perhaps that's a little bit too tight at the end, before they had this year, but something to consider because next year, it will be much harder for people to be employed on the same, because there won't be the same basis as now.
Casper: Thank you very much Andrew and maybe something to refer to in areas is the so called points based immigration system which has been up there for quite a while and I'm actually happy to say that it's, well its undergone a review, so I think minimum salaries were lowered in order to allow for more people to get into the UK and work in the UK, but again what I'm pleased to say is that the point based immigration system is relatively simple to understand, so not as complex as many of the other documents, one being the border operating model which is actually quite a complex document to navigate in and one where I would probably say that most companies will need some type of legal advice to understand exactly what the impact is on their business.
Maybe moving on to this again is around product, but of course in today's age and of course us being here together virtually the world does not run without data and transfer of data, so Tygecan you talk to us a little bit about maybe the subject of data adequacy and where things are there and what companies need to think about moving into the end of transition period in terms of receiving and sending data between the UK and the EU.
Tyge: Sure and this is like in the peripheral of my competencies, because GDPR is highly a detailed regulation, but from an overall perspective, once UK and the transition period expires then it's, it's no longer, UK is no longer a part of the GDPR eco-system within the single market and then it's from a legal perspective to consider a third country and once it's a third country, then we need to look into regulation, regulating how and under which circumstance you can share personal data and which personal data you can share with a third country and also which safety measures has to be taken and one very key thing here is and you might have read about it in the process, well it's whether UK is considered an adequate jurisdiction. So that means that the EU commissions stands the UK as an adequate jurisdiction and that is based on the UK from the EU commissions perspective is meeting certain security standards and how they treat and regulate handling of personal data and as of today, to my understanding, still no final conclusion as to whether it's going to be an adequate jurisdiction and if it's not going to be an adequate jurisdiction, I would say if it is an adequate jurisdiction, you can carry on more or less as you can today, but if it's not an adequate jurisdiction, they would have to look into, to certain regulation which have to be in place before you can share personal data with for instance a UK co-contractor or UK subsidiary and that is either by stating a new model contract clauses which is the way commissions the home page or you might have to incorporate binding the rules within the group if it's an intra-group sharing of data, which is roughly speaking leaning towards how the model contract clauses, so it's about safety and ensuring that personal data is handled in a safety manner.
You might ask for a consent for the person who you're sharing the personal data, but that is of course a theoretical solution because goes out and ask consent for each customer, each employee you share data about UK contra-contract or UK company, that's not going to work in practice and there may be a fourth way you can say and we're not sure how that's going to end and that is a UK privacy issue set up is being established a bit like the one which is made with the US and that might also be a solution, so on this point, it's important that you keep your eye on whether the UK is actually going to be considered an adequate jurisdiction, but I think for preparation purposes you should assume it's not going to be and then you need to advise what your GDPR advises as to how to handle this and incorporate the clauses and procedures which you need to have in place in order to be able to share those data with a UK co-contractor or group company or whoever you are sharing data with in the UK.
Casper: Thank you to you. Now since you've started up I've put in a little bit of caveat around the fact or saying that you're not a GDPR expert. Bernadine/Andrew any additional comments on the subject?
Bernadine Adkins: I think it's very much ...
Casper: You put yourself back on mute Bernadine. You got impatient as we talked about.
Bernadine Adkins: Oh yes, back on. Yes absolutely, it's a watch the spot because the UK was recently under the long running Max Schrems litigation. It seems that the standard contractual clauses that were being used are not adequate and that guidance is being issued as to what could be done. There are more hopes to go through, but at the moment the situation is very fluid and quite uncertain, so it really is a question of watch the spot. Thank you.
Andrew: Thanks. From my point of view, moving away from data but to intellectual property that's also something to look at after the end of the petition period. I'm not an IP lawyer, but it's something to consider.
Casper: Well I was just about to say, I mean you took the words right out of my mouth, which I think is a Meatloaf song from way back, but maybe you can talk a little bit about intellectual property rights and what to be aware of here Andrew.
Andrew: As I said I'm not an IP lawyer, I focus on arbitration.
Bernadine Adkins: I'm happy to jump in there just simply because I sit with all the IP lawyers and there's a big team of them here. They've issued a guidance on it, but I'm told that really because IP rights are as you know international, but we do have some EU rights and that relates to trademarks and obviously EU design rights and here what the UK legislation is doing is basically saying where you have an EU trademark or an EU wide design right, it will be flipped into the UK system and you will be granted a parallel UK right and you won't have to pay registration fees I think for the first year, but after that you have to re-register, so that is taking care of patent rights are obviously national, but the UK will no longer be part of the Unified Patents Court and unitary patent system, so we're out there and then in terms of litigation as I think Andrew said earlier we are still signatories of the Hay Convention. You can still have exclusive jurisdiction in IP agreements, so that will go on, but because we're outside of Lugano Brussels Convention, we will have to fall back on common law which is a very fluid system, we'll all be brushing out down the old case law, but never underestimate the creativity of English judges to find a solution and a way through, so if you want to dig into the detail of this, as I said my colleagues have produced a comprehensive guide, which is available on the website or just let me know and I can get it to you.
Casper: Thank you very much Bernadine. Now we're sort of slowly drawing to an end, so what I'd actually like to do, I mean I actually have a little bit of summary, but I'd like to just give each member of the panel a chance to try and re-summarise as best as you can where do you think the key areas are for preparation, you know, what other things that people should, I mean if they are trading between the UK and the EU and specifically in this context of course, then Matt what should they do, not tomorrow, but what should they start doing as soon as this webinar is over. I think we'll go alphabetically here as we did this morning, but the other way around, so maybe starting with you Tyge from the start off with the T.
Tyge: Yeah, well I think I make a few main points, but they're of course not going to be exhaustive and should also be a little bit left for Andrew and Bernadine. Now I would as a first thing make my talk points towards the UK market and that is of course my, if I was accompanying my direct export and find out what kind of products do I export, what are my, how do I export and do I export them directly or do I work through a seller or distributor and are they prepared for Brexit if you do that. Check on the compliance, for a compliance and in particular look at your contract and see if they are ready for a fluid Brexit world, as you kind of already got from the walk through today, a lot of things is still moving and have been done so for a while and we'll probably also do that after 31 December 2020. So make sure that your contracts are catering for the changes that might occur and we've talked upon some of the changes that might occur for instance in product compliance requirements, but also for instance pricing. If your pricing sets out certain and is based on certain assumptions as to the product requirements then it is important that if those assumptions have changed then you can sit down and have a negotiation of prices with your customer if possible, so stuff like that delay, what about if there's a delay due to customs duty again, a lot of writing has been about the Dover border and queues for the trucks and stuff and finally make sure that you're ready to handle any duties that are being imposed so actually have the administrative procedures in place. Having the competency in your house and you have registered within Denmark with the Danish sets of laws instead of a guarantee scheme and things like that. I think that, that is you can say that it's still part of the supply chain analysis and if you also have of course the import and delivery side of the supply chain so where do you actually purchase your products and are any of those things linked to UK market, might there be delay, might there be price increases and things like that, so it's where are you are exposed on that and also if some of your suppliers are exposed towards that, so not only you can say a direct supply chain analysis but also going back a bit further to see where there might be some risk, then I would map the risk and see how likely it is that there was going to be a change and a problem and then I would also, in that, also take care against your account, what is the impact if it actually happens. So have like a map where you can say it's a high impact and it's a high change of something being changed and then probably something you should start prioritising and look into, whether that's something that's going to have a low impact and is unlikely to happen then I wouldn't spend good time on it right now.
So matters like that and so you have, you can say a structured approach to handling the risk in Brexit that would be my main advice to you and then I leave the field from here.
Casper: Okay well without further ado Bernadine, do you want to supplement anything.
Bernadine Adkins: Yes briefly if you're taking Denmark into the UK, have a look, and you can google it, the UK document called the border operating model is about 138 pages, they're updating it constantly, explaining how it's going to work and it's a really really good lucid comprehensive explanation as to what you should be doing and it's making clear that the easements that apply, so for the first six months, you don't need to complete a customs declaration, so you can start to get yourself ready and then April you have to start to do health certificates with the food of animal origin and then it really hits in by July, so there is time, but in the meantime, get your data together, work out the origin of your goods of where you get, pick all your things for, so are you able to get preferential tariff treatment, work out what the classification and the commodity code is for your goods and also the customs value. So all of that is achievable, but I do recommend that you get hold of the boarder operating model and then the other thing services we've not really covered that. Services really aren't by in large necessarily covered by EU law, so you're now from a UK perspective going to be looking at well what are the individual countries doing viz-a-viz services, mutual recognition of qualifications, that's gone, so what can you do, what freedom of movement do you have and there I'm afraid we're probably likely to fall back on the WTO rules, so it's very complex, you're going to have to look, or work out what is the service and there's a whole list of different possible services, then you ask yourself what country am I supplying that service into, what has that country put into the WTO in terms of schedule and what easements between the mode 1 to 4 is in place, because we are used as UK to all of those things are free and freely available, now it's just more tricky and where, what box can you get yourself into, but ultimately it's achievable, you've just got to kind of work your way through and it's a cold time on your head time. That's all I want to say.
Casper: Thank you very much Bernadine and thank you for bringing the matter of services up clearly that's important especially if it's important of course for the UK in terms of how if we're looking at how trade between the UK and Denmark is distributable, so thanks for pointing that out. Andrew have we left anything for you to remind us of or have your colleagues been completely in what they've been mentioning.
Andrew: I agree with what's been said before, there's not much to add, no I would just say that contracts, look at the contracts, make sure that they are as ready as they can be for whatever happens after the transition period. Looking at the jurisdiction clauses as well and as mentioned before doing a risk assessment and seeing what are the priorities for your particular business.
Casper: I think it's probably worth mentioning that I mean if you haven't done these things yet I would argue that it's not too late doing them and you should make sure that you prepare and do it with urgency and once again I'd like to flag Copenhagen in the CPIT is a place where you can ask and that would especially be to get connected with the right people and the right departments in London. Now I'll sort of, shortly I'll be rounding off a little bit here. I think one thing that is really worth mentioning Gunnar did you want to come in or ...
Gunnar Larsen: I, there was actually just one question I thought would be good to bring up here but otherwise the people take the questions in the break out in a moment, there was something about how can you elaborate on business travel on Visa requirements for non-UK travellers for that sake if you were a board member of a UK company, but you're not a UK citizen or resident, maybe you could also take that question reverse, what if you are a UK resident and you're a board member in Denmark, for example, I think that's a good point maybe just to briefly bring up here if possible.
Casper: Sure anyone who wants to comment on that, I mean I can remember some of it, but I can't remember a slide with an overview who wants to volunteer on that one.
Tyge: Well I can give it a go. Basically what this is about I, is you can say short term business travelling, so you're travelling into the UK or the EU and to do some work and then travelling out again and the regulation to my understanding is going to be based on UK and EU regulation and which requirements is set up in each jurisdiction, but I've read so far is that there seems to be an agreement on that short term business travelling would not require an exact visa, so I read something about three months, but I haven't seen it iron out in any regulation so far, but I think you could assume that short term business travelling is going to be rather freely to do going forward, but we need to see the exact agreement on these things before you can say, I can say for sure.
Casper: Thank you Tyge, I think from memory the document I saw it's actually six months.
Tyge: I'm a lawyer and so ....
Casper:Okay, well a couple of things here and this would actually, well a pointer to somewhere a place where you can find a lot of information is the .gov.uk pages that Bernadine was talking about, googling the border operating model. You can go into .gov.uk and you can search for border operating model, you'll get that. You can search for points based immigration systems and you will get that, and you can actually search for a lot of things, it's being, it's very dynamic at the moment, so there is new information there at all the time.
I think sort of the final words from my end will be just a reminder because I think sometimes you can get a little bit lost in all of the complexities around end of transition period and Brexit and I also think that we're all in many ways affected by it, if we're sort of working closely in sort of the area of exchange between the UK and the EU and in this specific case UK and Denmark and I think we're all crossing our fingers that eventually we will have a negotiated outcome as opposed to a non-negotiated outcome. I think we've all gotten used to the idea of the UK leaving the EU and you can feel or think whatever you want to about that, but I think that's a fact, but one thing which I would like to remind yourselves and that's what I remind myself of once in a while because of course you can never expose to a lot of information is that Denmark is trading on a daily basis with third party countries goods and services are moving between Denmark and third party countries and again I don't have the facts, that's because I'm mainly looking at UK DK relations, but to the best of my knowledge I think the biggest trading partner for Denmark these days is no longer Germany which it used to be and I think UK was number one some years back, I think it's actually the US that's the number one trading partner for Denmark, so there is a lot of knowledge and expertise and systems in place because when a country goes from being an EU member to becoming a non-EU member, which is the first time, of course it's complicated to do the transition, but I'd just like to remind us all that trade is taking place and also between UK and third party countries, so of course we can make this work, of course a lot easier with a negotiated outcome.
I think I'll end it on that note and I will hand back to Gunnar and thank you very much from my end for the panellists and for providing a lot of I think very important insight on end of transition period preparations for companies trading between Denmark and the UK or the EU and the UK, but thank you very much Gunnar and I'll hand back to you.
Gunnar Larsen: Thank you very much Casper, really brilliant for your moderation here. We're not done yet, there's now a chance for all of you to ask more detailed questions and just a second I'm going to hand over to my colleague to explain how to do that. However, just briefly for more information on all of what's been said today, you'll find links on our event pages to the respective legal firms, to DIT, for that sake a lot of other members advice on how to go about, still continue trading from January and onwards, but moving on, Ciara from the British General Commerce and Cognate will you take the lead and show us how we get into the break out rooms please.
Ciara: Yes I'd be happy to do so Gunnar and thank you so much to all of our speakers. That concludes the main session of today and we will now move in to the break ....
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