Brexit,Legal Implications

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Brexit, Legal implications

A short checklist

What are the Legal implications of Brexit for businesses in the Netherlands and the rest of Europe? Are you ready to adapt, take new opportunities and mitigate any downside risks?

The following is a legal checklist to help you assess your preparations, and to prioritize those areas you may not have yet considered.

Corporate Structure

  • Establishment of legal entities, board composition, free movement of employees/expats (see also Staffing), corporate restructuring

Data Privacy

  • Whilst there may be changes to the Data Protection Regime in the United Kingdom, if the European Union is an important market for your organization the EU’s data protection requirement, including the General Data Protection (GDPR) – will continue to be relevant for your organization. Complying with the GDPR is therefore recommended.

Your business relationship with the EU

  • Consider whether any company of your group may be benefiting from EU grants or other EU funding or aid. Also consider whether you do any business with EU or UK public tender and how that would be affected. Further, consider the impact on relationships with the relevant (EU) agencies, such as EMA.

Cross Border mergers

  • Merging legal entities between UK and rest of EU will be subject to different rules and regulatory review.

Contracts and incoterms

  • Are the contracts with suppliers and customers Brexit ready? Contracts regarding import and export of goods and the provisioning services in an EU country should be checked on territorial restrictions and clauses that need to be amended. Are the applicable Incoterms still sufficient? Brexit may result in increasing costs due to longer waiting times at the border and higher import tariffs. This should be considered when (re)negotiating contractual terms.

Financial Considerations

  • The impact of Brexit on the value of collateral or security you may be required to provide should be considered. Is your access to the UK Capital markets impacted?
  • You could also review your financial covenants, material adverse change clauses, credit rating triggers and other break, termination, or ratchet clauses in its loan agreements, leases, banking arrangements, and other contracts.

Staffing

  • Rights (if any) that EU citizens will maintain to live and work in the United Kingdom. The procedures to obtain residency rights are yet to be determined, as well as how employers can recruit EU nationals or if work visas will be required.

Regulatory Law (other than Financial (supervisory) Regulatory Law

  • Assess whether any other licenses need to be applied for before Brexit or after Brexit to be able to continue to operate in the EU (market). Consider having the packaging and labelling amended accordingly, e.g. CE marking, different contact information, etc. Also, assess whether access to the EU market is still open in case of a UK entity is performing these regulatory obligations, including reporting. Amend work flows, and assess the disruption of (virtual) supply chains, including export controls (e.g. licensing, transfer of data and operation digital platforms. Also, consider the deviations of current and continued UK reg law aspects of the business, e.g. different UK sanctions and UK export controls requirements.

Financial (supervisory) Regulatory Law

  • Assess whether financial services can still be performed after Brexit, e.g. asset manager and bankers’ compensation may change (see also Staffing), and whether these bank and other financial service providers have access to the EU capital market, including banking license and passporting.

Intellectual Property Law

  • Assess to what extent Brexit impacts the strategy, enforcement, maintenance and registration of your organization’s IP portfolio. Consider any changes with European Union trademark(s) (applications) where a dual filing strategy should be followed to obtain protection in the UK, as well as in the EU.

More information?

Please view the PDF document enclosed for more information on Brexit related Legal risks or get in touch with Hans Albers.

Brexit, Legal implications

More information?

Please view the PDF document enclosed for more information on Brexit related Legal risks or get in touch with Sebastiaan van Dugteren.

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