Corporate Law Update
- The Government publishes more technical notices on the position in certain sectors in the event of a “no-deal” Brexit
- A few other items of interest
The Department for Business, Energy and Industrial Strategy (BEIS) has published a further 28 technical notices setting out the position in various sectors and the steps it intends to take in the event of a “no-deal” Brexit.
There are three notices of particular interest to us:
- Merger review and anti-competitive activity. The Government is not proposing any changes to the UK domestic competition regime beyond those necessary to “manage the UK’s exit from the EU”. It will continue to be unlawful to enter into anti-competitive agreements or to abuse a dominant market position. The current “block exemptions” under EU law will continue into UK law by virtue of the European Union (Withdrawal) Act 2018 (the EUWA). The voluntary regime for notifying mergers to the Competition and Markets Authority (the CMA) will also continue.
Following Brexit, the CMA will be the only authority responsible for reviewing the UK aspects of mergers, while the CMA and the UK sector regulators (such as the Financial Conduct Authority and Ofcom) will be responsible for investigating suspected anti-competitive behaviour with effects on UK markets.
The European Commission will continue to be able to investigate mergers within the EU Single Market, but will not consider the effects of the merger on UK markets. Importantly, this means the “one stop shop” mechanism will no longer apply. Mergers that hit the thresholds under both UK and EU law will be subject to both regimes, and not merely one or the other as at present.
In a “no deal” scenario, it is possible there will be no agreement on jurisdiction over live EU merger and antitrust cases where they address effects on UK markets. The note advises businesses which are currently subject to an ongoing antitrust investigation to take independent legal advice on how to comply with any ongoing investigation by the Commission or the CMA or a relevant UK sector regulator.
Until 29 March 2019, the EU merger control regime will continue to apply as normal. The note advises businesses who are considering a merger in the run up to that date to consider early engagement with both the CMA and the Commission. Businesses that have made a merger notification but not received clearance before March 2019 are advised to approach the Commission and the CMA for advice on any further action needed to comply with the relevant regime.
- Data protection. The Government states that there would be no change in data protection standards following Brexit, as the Data Protection Act 2018 (the DPA) would remain in place and the EU General Data Protection Regulation (GDPR) would be incorporated into UK law under the EUWA (the GDPR is already integrated to a large extent into UK law by the DPA.) The Information Commissioner’s Office will remain the UK authority responsible for data protection.
The UK Government has indicated that organisations would continue to be able to send personal data from the UK into the EU. However, because the EU cannot make an adequacy decision as to UK data protection law until the UK becomes a third country, at the point of exit, organisations will not be able to send personal data from the EU into the UK without having an alternative basis for the transfer.
The note states that, for most businesses, this will involve putting standard contractual clauses in place based on the Commission’s “model data protection clauses”.
- Handling civil legal cases. In a “no deal” scenario, the existing rules and systems for mutual recognition and enforcement of judgments across the EU, and for determining applicable law and jurisdiction, would cease to apply to the UK.
The Government states that it would then repeal most of the existing civil judicial co-operation rules. This includes Brussels Ia, the EU / Denmark Agreement and the Lugano Convention. Instead, UK courts would need to use the applicable domestic rules in each of the UK’s three legal jurisdictions (which are currently used in relation to non-EEA countries) in relation to EU Member States, Iceland, Norway and Switzerland.
The Government would, however, retain the Rome I and II rules and would make the necessary arrangements to ensure the UK remains party to the Hague Conventions.
The note highlights that certain countries may not recognise judgments from UK courts. It advises businesses to take independent legal advice about how these changes may affect their individual circumstances.
Other topics covered by the latest tranche of notices include broadcasting, driving regulations and vehicle approvals, environmental standards, industrial and CO2 emissions, oil and gas businesses, public sector contracts, regional development and other funding, satellites and space programmes, telecommunications and mobile roaming, trading under the mutual recognition principle, and travel to and within the EU and the Common Travel Area (CTA).
- The London Stock Exchange (LSE) has published N15/18, setting out feedback to its proposals in N13/18 to amend its Admission and Disclosure Standards to allow for trading in Chinese A share depositary receipts on the Shanghai-London Stock Connect Segment. The LSE has decided to implement its proposals in full without amendment.
- The Financial Reporting Council (FRC) has published research showing that, whilst a majority of the UK’s largest companies have adopted policies on boardroom diversity, only 15% of FTSE100 companies have fully complied with the UK Corporate Governance Code’s provision on diversity reporting. The report calls for better diversity reporting to stakeholders.
- The International Organization of Securities Commissions (IOSCO) has published a final report on conflicts of interest in the equity capital raising process. The report is intended to help IOSCO members with addressing misconduct risks. The guidance is based on eight “measures”, each of which address potential conflicts of interest at a different stage of the capital raising process.