The UK government’s plan for the future relationship with EU: The techlaw aspects in summary

February 27, 2020

The UK government has published its plan for negotiating the UK’s future relationship with the EU once the transition period comes to its expected end in December 2020. The government says that it will be consulting on the economic impact of its plans later in the spring of 2020.

The plan covers various issues of interest to tech lawyers including cross-border trade in services generally, telecommunications services, audio-visual services, digital services, competition policy, intellectual property and good regulatory practices.

The relevant passages are reproduced and / or summarised below

Chapter 8: Cross-border trade in services

The government seeks a free trade Agreement which should, among other things, promote trade in services and investment. 

“The Agreement should enhance co-operation between the parties and competent authorities, and facilitate trade through such as the recognition of professional qualifications.”

 It should deliver ongoing liberalisation for trade in services and investment and provide the basis for the future development of services trade between the parties.

“The Agreement should provide for balanced and reciprocal market access. It should have substantial sectoral coverage… The provisions should respect both parties’ right to regulate and be subject to limited, justified carve-outs, such as for services in the exercise of governmental authority.

The Agreement should also include provisions on market access, national treatment and local presence. In addition, it should include most favoured nation treatment. In areas of key interest, such as professional and business services, there may be scope to go beyond these commitments.

Chapter 13: Telecommunications services

“The Agreement should provide commitments to ensure fair and equal access to telecommunications networks and services, preventing anti-competitive practices and delivering benefits for consumers. Telecommunications services provide key infrastructure for the digital economy and equitable access will provide mutual benefits for the parties.”

Chapter 15: Audio-Visual Services

“The Agreement could promote trade in audio-visual services as well as associated businesses in the audio-visual supply chain by ensuring fair access and treatment for audio-visual services, and provide protections for the UK’s audio-visual services policy framework.”

Chapter 17: Digital services

“The Agreement should promote trade in digital services and facilitate modern forms of trade in both services and goods and in both new, technology-intensive businesses and traditional industries.”

“The Agreement should include commitments on market access and regulatory governance of digital trade. Commitments on market access should minimise barriers to the supply of digital services provided from the territory of a party into the territory of the other party and will provide a clear and predictable basis upon which business can invest. This should lock in regulatory certainty, while preserving the UK’s regulatory autonomy.”

“The Agreement should include provisions to promote an open, secure and trustworthy online environment; encourage regulatory cooperation and a strategic dialogue on emerging technologies; and stimulate e-commerce through measures that facilitate the cross-border flow of data. Elements of this could draw upon international best practice and ongoing negotiations, for example negotiations on the WTO’s Joint Statement Initiative on E-Commerce”

The government also stresses that digital is a “growing, dynamic sector” and that digital provisions in EU trade agreements have evolved. It thinks that the provisions on digital trade could, in specific areas, go beyond previous agreements to reflect “the direction of travel in current digital trade negotiations.” 

Chapter 21: Competition policy

“The Agreement should commit the parties to maintain effective competition laws, covering merger control, anti-competitive agreements and abuse of dominance, while maintaining the right to provide for public policy exemptions.”

The government says that this does not require legal or regulatory alignment and that both parties should have the regulatory freedom to respond to new challenges in these areas. They go on to state that:

“The Agreement should include provisions that have transparent, non-discriminatory rules and enforcement procedures for competition law. It should also recognise the mutual importance of effective cooperation between the parties on competition law.”

Chapter 23: Intellectual Property

“The Agreement should include an IP chapter that secures mutual assurances to provide high standards of protection for IP rights, including registered IP rights such as patents, trademarks or designs, or unregistered rights such as copyright, trade secrets or unregistered designs. These provisions should make reference to and exceed the standards set out in international agreements such as the WTO agreement on Trade-Related Aspects of Intellectual Property and World Intellectual Property Organisation treaties. The UK is open to discussing mechanisms for cooperation and exchange of information on IP issues of mutual interest.”

Chapter 24: Good regulatory practice and regulatory cooperation

“The Agreement should include provisions on good regulatory practice and regulatory cooperation, in relation to business activities. These provisions aim to reduce non-tariff barriers to trade between the parties, creating an environment that promotes investor and exporter confidence in all sectors. They should include reciprocal commitments to regulation-making processes that are robust, transparent, evidence-based and proportionate, and ensure that regulatory burdens are kept to a minimum.”

Other issues and data adequacy

The negotiation document also includes the government’s stance on other issues such as participation in Horizon and EU science programmes, exchange of criminal records, DNA fingerprint and vehicle registration data and passenger record data.

With regards to data adequacy the UK states it will have an independent policy on data protection at the end of the transition period but will remain committed to high data protection standards and so will seek ‘adequacy decisions’ from the EU under both the General Data Protection Regulation and the Law Enforcement Directive before the end of the transition period. Its stance is that these are separate from the wider future relationship and so do not form part of trade agreements. The government also highlights that, on a transitional basis, the UK has allowed for the continued free flow of personal data from the UK to the EU and it will  conduct assessments of the EEA states and other countries under an independent international transfer regime. The UK also wants to see arrangements in place to allow continued cooperation between the ICO and EU member state data protection authorities.