Service providers: getting ready for Brexit - updated January 2021

Don't expect too much from the deal

The Trade and Cooperation Agreement (TCA) signed by the UK and the EU in December 2020 does not go much beyond preserving levels of access currently enjoyed by businesses from non-EU countries. For example, where the current level of access goes beyond the EU's WTO commitments, the TCA generally seeks to entrench this i.e. it will effectively prevent the EU adopting a more restrictive approach in future.  However, given that the UK has been used to an enhanced level of access based on EU membership, such an approach will still result in increased barriers for UK service providers selling into the EU.

How will services businesses be affected?

Some of the practical examples of what this is likely to mean for services business are well known;  for example, in highly regulated sectors such as financial services or broadcasting, businesses based in the UK will simply no longer be authorised to carry out the same range of activities that equivalent EU businesses can undertake.   In other sectors, UK providers may find that although they still have market access in principle, the change in the UK's status from an EU Member State to a third country means that they are treated less generously than competing providers based in the EU. 

Another key point is that in many sectors, there are no rules harmonising the position across the EU. This means that differences in treatment may vary considerably from one EU Member State to another.  Some may adopt a relatively unrestrictive approach, whereas others may have made much more extensive use of their freedom to impose more onerous conditions on non-EU providers.  Consequently, you should not assume that, just because your treatment in one EU Member State appears likely to remain the same, other Member States will necessarily adopt the same approach.

How do I work out whether Brexit will lead to a difference in treatment?

The first point to check is what commitments (if any) the EU has made under the TCA or (failing that) the WTO services regime. If the EU has committed to allow a certain level of access, then you should be able to take at least a moderate level of comfort from that – because in principle, Member States should have adjusted their national laws so as to permit services of that type to be provided by non-EU firms.  Similarly, if the EU has committed to treating non-EU firms in the same way as EU providers, this too is likely to provide a level of comfort.  We can help you with this.

If there's no commitment (or there is one, but it is subject to significant conditions or reservations - as will often be the case, particularly with the TCA), then unless your sector in is subject to a harmonised set of rules across the EU, it will be a question of looking at the national rules in each of the EU Member States in which you have customers. The key point to focus on is whether service providers from outside the EU are treated differently from EU businesses. We can help you with this analysis by involving firms that we regularly work with in different EU Member States.

If there's no commitment, that doesn't necessarily mean you can't provide services – it just means that the EU or any of its Member States are free to put obstacles in your way, if they so wish. But they may choose not to do so – in which case the position may be better than it initially appears. Conversely, if there is a commitment, that doesn't necessarily mean that you can continue to provide services exactly as you did before 1 January 2021 – as noted above, it may well be that much of the value of the commitment is effectively subtracted by conditions or reservations in the detailed Annexes to the TCA.

However, as explained below, the treatment of non-EU service providers is not the only issue you need to consider.  In practice, issues such as data transfers and the ability of staff to travel to the EU for business purposes may be equally, if not more, significant.

Many services businesses need to be able to send staff to visit existing or prospective customers or suppliers in the EU for a variety of reasons, ranging from negotiating new contracts to provision of services at the customer's location or delivery of training. After the end of the Brexit transition, sending staff to the EU to carry out services will often be subject to significantly more red tape. Whilst the Trade and Cooperation Agreement (TCA) agreed between the UK and the EU in December 2020 contains provisions allowing short term business visits without visas or work permits, these are unlikely to cover provision of services. Even where the visit is simply to meet prospective customers, conduct market research or to negotiate a new contract (to be performed in the UK) - all of which could fall within the short term business visitor provisions - new passport and border requirements will still apply. 

The key point is that after 31 December 2020, it is no longer a question of simply jumping on a 'plane or the Eurostar to visit an EU business;  thought will need to be given to the exact purpose of the visit in advance and if services are to be carried out, requirements for work visas will need to be considered.  For more detail see:

• Brexit – should employers be worried about business travel post-Brexit transition?
  
  
• Brexit - How will any EU-UK free trade agreement deal with movement of people?

For many businesses, the ability to exchange data with trading partners in the EU is critical.  Where the information in question is personal data, the position is complicated by the requirements of data protection law.  There are two key issues that services businesses trading with the EU need to consider:

Handling personal data from the EU after Brexit

UK businesses which handle personal data relating to EEA citizens may also need to take a number of other steps, including in some cases:

• appointing a representative in the EU; and
  
  
• considering whether they can still benefit from the "one stop shop" principle, which allows a single data protection authority to be designated as the lead supervisory authority (LSA) for organisations. After the end of the transition, the UK Information Commissioner's Office (ICO) will no longer be able to fulfil this role for UK businesses.

For more detail, see:  Brexit, your business and data: processing European personal data.

Providing services to EU customers through an EU subsidiary may be worth considering, but it is not a step to be taken lightly. The key advantage of doing so is that an EU-incorporated entity will be an EU legal person;  it should therefore be able to benefit from the same treatment that a UK firm received before the end of the transition period (even though it will ultimately be owned and controlled by a non-EU person). Such a step would only be possible in sectors where the Member State in question permits so called "Mode 3" access, which is the right for non-EU service providers to establish themselves in the EU. But it is reasonably common for countries to permit Mode 3 access, because it encourages inward investment by non-EU businesses.

If you don't sell to customers in the EU, you may well have less to worry about – but there are still a number of issues to consider:

Reliance on EU suppliers: goods

Many services businesses such as those in the retail or hospitality sectors rely on EU suppliers for key inputs, such as the goods which they sell.  So far as goods suppliers are concerned, the key questions to ask are as follows:

• Do your suppliers expect to increase prices because of the extra costs of dealing with additional border red tape (arising from the UK's exit from the EU Single Market and Customs Union at the end of the Brexit transition)? Note that in some cases, EU suppliers could decide to stop serving the UK altogether in order to focus on customers within the EU Single Market and Customs Union.

• What steps have your suppliers taken to minimise the risk of delays/shortages arising out of the introduction of additional border red tape? What steps have you taken to mitigate that risk?

Reliance on EU suppliers: services

Businesses relying on EU suppliers of services may have less to worry about because the UK is a relatively open market for services (and therefore the end of the Brexit transition may make little difference to the ability of many EU service providers to access the UK market).  However, it is possible that EU staff needing to travel to the UK to perform services may face additional red tape, as outlined in section 2 above.  You may also need to consider data issues (see section 3 above).

Reliance on workers from the EU

Many UK services businesses have historically relied quite heavily on workers from the EU, for a wide variety of roles right across the skills spectrum. The end of the Brexit transition and the move to a points-based immigration regime for all non-UK citizens, including those from the EU, will make the process of recruiting non-UK citizens more complex and costly.  For more information on these changes and what employers should be doing to prepare, see:

• Our September 2020 video, Brexit and immigration: what do you need to do to prepare?
  
  
• Our briefing, Post-Brexit immigration - the new points-based system.
  
  
• November 2020 webinar on the new points-based immigration system