United Kingdom

On May 10, 2022, Prince Charles announced in the Queen’s Speech that the UK Government’s proposed Online Safety Bill (the “OSB”) will proceed through Parliament. The OSB is currently at committee stage in the House of Commons. Since it was first announced in December 2020, the OSB has been the subject of intense debate and scrutiny on the balance it seeks to strike between online safety and protecting children on the one hand, and freedom of expression and privacy on the other.

To what services does the OSB apply?

The OSB applies to “user-to-user” (“U2U”) services—essentially, services through which users can share content online, such as social media and online messaging services—and “search” services. The OSB specifically excludes  email services, SMS, “internal business services,” and services where the communications functionality is limited (e.g., to posting comments relating to content produced by the provider of the service). The OSB also excludes “one-to-one live aural communications”—suggesting that one-to-one over-the-top (“OTT”) calls are excluded, but that one-to-many OTT calls, or video calls, may fall within scope.Continue Reading Online Safety Bill to Proceed Through Parliament

Northern Ireland’s 30 years of ‘Troubles’ were brought to an end by the 1998 Good Friday Agreement (the GFA). The GFA was based on the principle of cross-community support from both nationalists and unionists: a delicate compromise which sought a middle path between the Unionists – who see N Ireland as an integral part of the UK – and the Nationalists – who view the future of N Ireland as lying in reunification with the Republic.

The success of the GFA was underpinned by the fact that both the UK and the Republic of Ireland were in the EU.  Whilst both countries were members of the EU, there was no need for a border between N Ireland the Republic – goods and services could flow unimpeded across the border.  Leaving the EU required a bespoke solution to N Ireland – one that respected the GFA and did not reimpose a physical border between N Ireland and the Republic: a visible manifestation of a divided island.

Squaring the circle of respecting the GFA, whilst taking the UK as a whole out of the EU, was always the most complicated part of Brexit. With the UK outside the EU, a customs border would be required somewhere: it could not be between N Ireland and the Republic, because of the need to respect the GFA and avoid antagonizing the Nationalist community. The only place that border could be therefore, was in the Irish Sea between N Ireland and the rest of GB – which risked irritating the Unionist community.

The Northern Ireland Protocol

The solution to this delicate balancing act was the Northern Ireland Protocol (the NIP), which left N Ireland in the EU Single Market, but brought it out of the Customs Union, enabling N Ireland to have the best of both worlds, with one foot in the UK and the other in the EU.  However, the NIP imposed checks on goods (especially food and medicine) from GB arriving into N Ireland, to ensure they complied with EU standards and avoid the risk of them leaking into the EU Single Market through the back door: these checks have so far been unilaterally postponed by the UK.

Elections add to the complexity…Continue Reading The UK and the Northern Ireland Protocol (again!)

The UK is not alone in feeling the effects of the Russia-Ukraine crisis which compounded an already tight energy market, in which the post-Covid economic recovery caused demand to outstrip supply. But the UK does appear to have been perhaps more heavily affected by this combination of factors, which has led to a steep rise in energy costs. With an average UK family’s energy bill increasing by 54% so far this year and inflation nudging the double-digit mark, the ONS declared earlier this month that the squeeze on living standards was the worst since the 1950s.

The EU has belatedly realized the dangers of its over-reliance on Russian hydrocarbons and is urgently seeking to source gas and oil supply elsewhere. In the short to medium term, this will force global gas prices higher as the EU competes on global gas markets for a constrained resource. In the longer term, countries view the war in Ukraine as a clear indication that reliable, clean, domestically-produced renewable energy bolsters national security by removing dependence on volatile international hydrocarbon markets. The PM’s comments in the foreword – “We need a power supply that’s made in Britain, for Britain” – underline how that sentiment also applies in the UK, whilst at the same time hint, perhaps worryingly, at a less globalized future energy market.

It is against this backdrop that on 7 April, almost unnoticed, the UK Government published its long-awaited Energy Security Strategy (ESS). The ESS was supplemented by the announcement in this week’s Queen Speech of the proposal for an Energy Security Bill, building on last year’s COP26 Summit in Glasgow and designed to deliver the transition to cheaper, cleaner, and more secure energy in the UK.

UK Energy Security Strategy

Immediate Support on Energy Bills

The ESS sets out a new Energy Bills Support Scheme that will see a £200 reduction in energy bills from October 2022, to be offset against a Government levy on domestic energy bills over 5 years from FY23. To mitigate the high cost of industrial electricity, the Government will extend the Energy Intensive Industries Compensation Scheme for a further three years, and increase the intensity of the aid to up to 100 per cent, representing 1.5 per cent of Gross Value Added. It will also consider increasing the renewable obligation exemption to 100 per cent. These measures will enable businesses to apply for greater relief for part of their electricity costs. The Government has since announced that the total level of compensation under the Scheme will increase from roughly £130 million to up to £280 million.

Energy Efficiency

Building on existing efforts to promote the energy efficiency of UK homes, the Government will make the installation of energy-saving materials zero-rated for VAT purposes for the next five years. A new £450 million Boiler Upgrade Scheme will facilitate the uptake of heat pumps, alongside a Heat Pump Investment Accelerator Competition being run in 2022, worth up to £30 million. Later this year, the Government will aim to publish proposals incentivising electrification, which aims to ensure that heat pumps are comparatively cheap to run. The Government will increase innovation funding for the development and piloting of new green finance products for consumers from £10 million to £20 million. Early 2023 will see a formal consultation on new minimum standards and labelling requirements for a range of energy-using products.

Oil and Gas

The ESS sets out the Government’s vision for the North Sea, noting that in order to reduce reliance on imported fossil fuels, the UK must fully utilise North Sea reserves; use empty caverns for CO2 storage; and encourage the use of hydrogen as a natural gas alternative, alongside using North Sea offshore expertise to support the offshore wind sector. The ESS argues that there is no contradiction between the UK’s net zero commitment and its commitment to a strong and evolving North Sea industry, but rather that one depends on the other.
Continue Reading The UK’s New Energy Security Strategy

On 28 April 2022, the Subsidy Control Bill (the “Bill”) received Royal Assent, becoming the Subsidy Control Act 2022 (the “Act”).  The Act lays the basic framework for the new UK-wide subsidy control regime, which is now expected to come into force in Autumn 2022.  Although the Act primarily addresses UK public authorities and their

On 20 April 2022, the UK Financial Conduct Authority (“FCA”) published its Policy Statement PS 22/3 on disclosures regarding diversity and inclusion targets for the boards and executive committees of UK-listed companies. These measures reflect the growing importance of  Environmental, Social and Governance (“ESG”) considerations, and have gained particular traction in the financial services sector,

On Thursday 10 March, the UK Covid-19 Inquiry launched a public consultation regarding the terms of reference that will establish the parameters for the Inquiry’s forthcoming work.   The consultation will conclude on Thursday 7 April.

The draft terms of reference set out two key objectives for the Inquiry: (1) examining the Covid-19 response and the

The UK Covid-19 Inquiry, which has been established to examine and learn lessons regarding the UK’s preparedness and response to the Covid-19 pandemic, launched its website on Monday 28 February.

According to the website, two experienced individuals have been appointed as Solicitor to the Inquiry and Counsel to the Inquiry, both of whom have been

This alert provides a further update on the rapidly evolving sanctions landscape with regard to the Ukraine crisis, further to our alerts on February 22 and February 25. On 25 February 2022, the European Union adopted an additional package of targeted and sectoral sanctions against Russia in response to its military actions in Ukraine. Those measures, which were announced earlier last week, include a range of new asset-freezing designations, financial sector restrictions, export controls, and other measures. The UK has also announced further economic sanctions against Russian individuals.

According to a joint statement issued by Canada, France, Germany, Italy, the UK, the U.S., and the European Commission on 26 February, further economic sanctions yet will be introduced in the coming days. Those measures will include the removal of selected Russian banks from the SWIFT messaging system using to facilitate global financial transactions.

New EU Targeted and Sectoral Sanctions

Additional Asset-freezing Designations

Council Implementing Regulation (EU) 2022/332 adds 98 people to the EU asset-freezing list. The list notably includes the Russian President Vladimir Putin and the Minister of Foreign Affairs Sergey Lavrov, as well as other members of the Russian National Security Council. Sanctions will also be extended to the remaining members of the Russian State Duma, who ratified the government decision of the Treaty of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the two Ukrainian non-government controlled regions of the Donetsk and Luhansk oblasts. The Regulation also targets individuals who facilitated the Russian military action from Belarus.

New EU Sectoral Sanctions

The most far-reaching measures are introduced in Council Regulation (EU) 2022/328 (the “Regulation”). The Regulation amends Regulation (EU) 833/2014, first issued in August 2014, which set out the EU’s existing Russia sectoral sanctions regime, and introduces new measures targeting various sectors of the Russian economy.

As with regard to the original version of Regulation 833/2014, the restrictions summarized below extend to the worldwide conduct of EU persons and entities, conduct aboard EU-flagged vessels and aircraft, and to non-EU parties with regard to business occurring in whole or in part within the EU.

The Regulation introduces the following new export and related services restrictions:

  • Restrictions on exports of dual-use goods and technology: The Regulation replaces the pre-existing prohibition on exports of dual-use goods and technology under Council Regulation 833/2014. The pre-existing prohibition was limited to the export of dual-use goods and technology that were intended for military use or for a military end-user; the amended Regulation expands that prohibition to restrict the export of dual-use goods and technology and the provision of related services to persons in Russia regardless of the intended end-use or end user.

While exports of dual-use items always required licensing for Russia pursuant to the EU Dual Use Regulation, these new restrictions expand on those measures in important ways. In particular, as the jurisdictional scope of the Regulation extends to the conduct abroad of EU persons and entities, dual-use export controls on Russia are no longer limited to exports from the EU – the Regulation’s dual-use controls could apply with regard to actions by EU persons and entities in connection with the sale, supply, or transfer of dual-use items to Russia from anywhere in the world.
Continue Reading EU and UK Adopt Additional Sanctions Against Russia, with Further International Sanctions Measures Announced

When the UK left the EU on 31 December 2020, the Competition and Markets Authority (“CMA”) gained new powers, functions and responsibilities previously exclusively reserved to the European Commission (the “Commission”).

This blog explores how the CMA has tackled its increased workload in the first year post-Brexit, under the shadow of the global pandemic, and the extent to which the CMA’s practice has diverged from EU law.

  1. The CMA’s merger caseload hasn’t increased as much as expected…

The CMA predicted a 50% increase in the number of merger cases post-Brexit. This has not materialized. Between April 2015 and March 2020, the CMA reviewed on average 60 transactions annually. As the pandemic took hold, this dropped to just 38 between April 2020 and March 2021.

Between April and December 2021, the CMA opened 41 merger investigations, suggesting the CMA will be on course to review 60 transactions by the end of March – a 50% increase on 2020-21, but still down on the CMA’s pre-pandemic caseload.

  1. … but outcomes of investigations into transactions also reviewed by the Commission have generally been consistent.

Since Brexit, the CMA has reviewed 11 transactions which were also notified to the Commission. Only two resulted in different outcomes: one transaction cleared unconditionally by the CMA at Phase 1 required remedies at Phase 2 to obtain Commission clearance; and one where the CMA is undertaking a Phase 2 investigation despite the transaction being cleared with remedies at Phase 1 by the Commission.

While this broad consistency of decisions is likely to be welcomed by businesses, it should also be recalled that:
Continue Reading Trends, developments and divergence from EU law? The CMA’s first year as a global competition authority

The English High Court (“High Court”) has issued an important judgment in the claim that Gemalto group companies (“Gemalto”) brought against Infineon (“Infineon”) and Renesas Electronics (“Renesas”) companies, for damages arising from the smart card chips cartel (Gemalto NV and others v Infineon Technologies AG [2022] EWHC 156 (Ch), the “Judgment”).  The claim arises