A few businesses are already setting up subsidiaries in the UK and the EU to deal with many of the issues arising from Brexit.

Whether you are already operating from the UK or managing a production line across the Channel, considering setting up or buying a business, here are some tips to bear in mind in the event of a “no-deal Brexit”:

1. Mergers & acquisitions – if you can manage the risk of currency volatility, then at law, the event of “Brexit” is unlikely to have a major impact on the regulations relating to UK share sale/purchase transactions unless they are affected by competition regulation.
2. Employment – Unless special arrangements are put into place by the UK, employing and recruiting new EU nationals in the UK will require work and residence permits. Each European country (UK included) is currently setting out their own set of rules.
3. Shorter contracts – Your business model should allow enough margin to absorb currency fluctuation which will also have an adverse effect on your ongoing contracts if they cannot be terminated on short(er) notice.
4. Transfer of EU data to the UK – It is not expected that the EU will confirm on short notice that the UK legislation is “adequate” to allow the transfer without additional protections of personal data to the UK from say a French or German company. Until then, businesses will need to use EC Standard Model Clauses. However, these clauses do not cover all circumstances.
5. Intellectual property rights (IPR) and parallel imports – IPR will need to be registered both in the UK and in the EU. In addition, UK businesses will no longer benefit from the EU doctrine of exhaustion, which prohibits IPR holders from enforcing their rights in respect of the resale of goods originally sold in the EU with their permission. This will give more opportunities to EU businesses to block parallel imports in Europe from their UK competitors. Consider also changing your “.eu” domain name now.
6. Cross-border traders – Suppliers are advised to set up companies in the UK to ensure the continuity of the production and reselling chain and keep their market share in the UK.  If you buy your components from local suppliers, have you thought about conducting an audit of where they source their materials?
7. EU regulations – Review your contracts to address issues such like a reference to Italian/EU law as the applicable law to the contract, or a EU court (say Paris court) being competent to hear a dispute, or where the territory of your contract states “the EU”, or where the contract refers to a EU regulation. For example: is your business subject to the EU’s eCommerce Directive? Or what steps might you need to take to comply with separate UK and EU regulators in the future?
8. Distributors’/resellers’ insurance documents and trade/VAT/import papers should be in place and in this context, consider some of these questions and consider training staff:
   • Are you familiar with terms such like: INCOTERMS, or being registered with an EORI number, being an Authorised Economic Operator, processing a customs and Safety and Security Declaration, the temporary tariff schedule for imports to the UK?
     Do you know which country would be best suited to support your supply chain to EU customers/suppliers?
   • Do you have access to bank guarantees required by Fiscal Representatives?
   • If you are a business that is stockpiling, have you checked with your insurer or insurance adviser on whether you are still fully insured?

Your business does not have to deal with Brexit alone.  Please contact Paul Marmor as well as your tax advisors who should be able to assist.

Following the UK’s decision to leave the EU, the medicines regulator, the European Medicines Agency (EMA), decided to relocate from its Canary Wharf premises to Amsterdam. The EMA tried to bring their lease at to an end, maintaining that the 25 year lease, granted in October 2014, would be ‘frustrated’ by the potential withdrawal of the UK from the EU.

Key to the court rejecting their argument was the length of the lease (25 years), the absence of a break clause and the ability to assign and underlet the premises.

The court’s decision would clearly have had a significant impact, if it had gone the other way.  Whilst it has prevented the floodgates opening for now, it is also unlikely that this is the last we will hear of this type of argument.  Some commentators have suggested that, where parties can show a common purpose to the signing of the lease, specifically it being dependent on the UK remaining within the EU, judges may have a more sympathetic ear. The EMA have sought leave to appeal …. watch this space.

This was the one of two cases covered by the Head of Real Estate Litigation at Sherrards, who was a guest speakers at a recent CPD training day run by South of England Surveyors for over 100 surveyors based on the south coast.

To find out more, please contact Paul Marmor.