Implications for South African businesses: Brexit and the Economic Partnership Agreement between the EU and the Southern African Development Community EPA States

Just over a year ago, the European Union (“EU”) signed an Economic Partnership Agreement (“EU-SADC EPA”) with the Southern African Development Community EPA States: Botswana, Lesotho, Mozambique, Namibia, South Africa and Swaziland (“SADC EPA States”).

Pending ratification by all twenty eight EU Members States, the EU-SADC EPA provisionally entered into force between the EU and the SADC EPA States (excluding Mozambique)i on 10 October 2016. The provisional application of the EU-SADC EPA means that only those provisions that concern areas for which the EU has exclusive competence (such as international trade) apply currently.

1. Key benefits for South African exporters under the EU-SADC EPA

2. Brexit will likely result in the United Kingdom no longer being a party to the EU-SADC EPA

3. Possible solution to maintain preferential market access to the UK

4. South African businesses should take action

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Brexit negotiations key resources – new page on our Brexit blog

A new page has been added to this blog: UK/EU Papers

The page contains the key resources from the UK and the EU relating to the Brexit negotiations, including speeches, white papers, position papers and policy papers, as well as all of our blog posts relating to these materials.

Check out this new page here.

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We submitted written evidence to the House of Lords on impact of Brexit on UK competition policy

Herbert Smith Freehills’ have submitted written evidence to the House of Lords Internal Market Sub-Committee in its inquiry into the impact of Brexit on UK competition policy.  In this submission, we focus on the questions posed in the call for evidence in relation to the application of State aid rules post-Brexit.

In summary, the key points are Continue reading

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European Banking Authority (EBA) provides guidance to authorities and institutions on Brexit relocations


The EBA has published an opinion on Brexit-related issues, in order to ensure the consistent application of EU legislation to UK-based financial services firms who are seeking to establish in the EU27 or to enhance their presence to retain access to the EU Single Market post Brexit. The aim of the opinion is to provide certainty and transparency for the firms involved and to ensure a consistent supervisory approach by the relevant authorities to issues arising in the context of Brexit.

 Click here to read the EBA opinion.

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Comments on the UK’s Customs and Trade Brexit Policy Papers Published in October 2017

On 10 October 2017, the UK Government published two papers setting out its proposals for the UK’s trade and customs policy post-Brexit: “Customs Bill: legislating for the UK’s future customs, VAT and excise regimes” and “Preparing for our future UK trade policy“.

The first paper explores the measures that the UK will need to introduce to regulate customs, VAT and excise duties under various Brexit scenarios while the second one discusses the UK’s future trade policy more generally.

Click here to read our detailed briefing with an overview and comments on these proposals.

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What future for public procurement regulation in the UK post-Brexit?

The extent to which the UK Government will eventually be free to modify or even repeal the regulations on public procurement, post-Brexit, will depend largely on the outcome of the ongoing negotiations between the EU and the UK Government, as well as the policy choices of the UK Government post-Brexit. Several recent developments in the Brexit saga have given some clues as to the possible future treatment of public procurement in the UK, following Brexit. In particular, the EU Withdrawal Bill, combined with Theresa May’s recent speech in Florence, make it more likely that the UK procurement regulations will remain in force and largely unchanged for the foreseeable future.

Nonetheless, some key questions remain unanswered. In particular, what happens if the UK and EU fail to reach any agreement prior to Brexit, leading to a de facto “hard Brexit”?

Click here to read the full article

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UK Department for International Trade and the UK Treasury release Brexit papers on future UK trade policy

The UK Government’s Department for International Trade has released a policy paper on ‘Preparing for our future UK trade policy’ in which it is seeking views on all aspects of its developing approach to the UK’s future trade policy.  Feedback should be sent to by 6 November.

The first part of the paper focuses on the trading world in which the UK operates and the role of trade in the economy. The second part of the paper outlines the basic principles that will shape the UK’s future trading framework and its developing approach to trade policy, with particular focus on these five points:

  1. Trade that is transparent and inclusive
  2. Supporting a rules-based global trading environment
  3. Boosting our trade relationships
  4. Supporting developing countries to reduce poverty
  5. Ensuring a level playing field – a UK approach to trade remedies and trade disputes

The UK Treasury also released a new paper titled ‘Customs Bill White Paper’. This paper addresses plans to legislate for the standalone customs, VAT and excise regimes for the UK post-Brexit.

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The Brexit negotiations – the view from Brussels on developments in September

The Brexit debate often looks different when viewed from Brussels rather than from London. That Brussels perspective however is important for businesses to keep in mind and therefore we publish a monthly view from our Brussels office on recent developments and the state of the negotiations. This first monthly update looks at issues arising from the relationship between the transitional arrangements and the future relationship between the UK and the EU.

To continue reading the full briefing click here.

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EU and UK release joint technical note comparing their positions on citizens’ rights

Following the fourth round of negotiations, the latest joint technical note comparing EU and UK positions on citizens’ rights has been released. There has been agreement on a number of issues regarding citizens’ rights, however, there are a number of areas where the EU and the UK still hold differing views.

The European Council meeting on 19 – 20 October 2017 will decide whether there has been sufficient progress on the first phase of the Article 50 negotiations on withdrawal arrangements in order to progress to the second phase in the negotiations and consider the UK’s future relationship with the EU.  Speaking at a press conference following the latest round of negotiations, Michel Barnier recognised that the Prime Minister’s speech in Florence last week had certainly created a new dynamic, but he also made it clear that both sides were “not there yet” and that it may be weeks or months before the EU will allow the negotiations to progress to trade talks.

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“PORT CHARLOTTE” Whisky does not infringe the EU protected designation of origin (PDO) “PORTO” or “PORT” – Consideration needed urgently for protection of PDOs and GIs, UK and EU-wide, post-Brexit

The post below was first published on our Intellectual Property blog

The CJEU has confirmed that “Port Charlotte”, registered as an EU trade mark for whisky, does not evoke (infringe) the protected designation of origin (PDO) for “porto” or “port”. The decision will be significant for consumer products businesses as it confirms that EU (not national) law applies to enforcement of Protected Designations of Origin (PDO) and highlights the importance of ensuring continued protection of UK PDOs post-Brexit.

Interestingly, the CJEU did not find that the use of “Port Charlotte” as a brand for whisky would have a detrimental impact upon the PDO for port (and the port producers protected by this designation). Yet we await the outcome in a not dissimiliar dispute before the CJEU between the Champagne wine producers and Aldi over the sale of champagne flavoured sorbet (see our report of the Aldi case here ).

Business Impact

·         The CJEU’s ruling that Regulation1234/2007 (which sets out the rules on PDOs for wine) (the “Regulation”) exclusively and exhaustively lays down the legal rules in the EU applicable to the protection of PDOs, to the exclusion of any national laws which seek to provide additional protection, confirms that the system for PDO protection is entirely as set out in the relevant EU law, and cannot be supplemented at a national level.

·         Assessing consumer perception of the meaning of a mark, throughout the EU, will be relevant to the assessment of whether that mark “evokes” in the mind of the consumer the PDO in question.  The impact of this point will be fact specific, in each case.  The likelihood that a PDO is evoked may also be affected by the similarity, or otherwise, of the features of the products in question.

·         In a post-Brexit world, the UK will need to give thought to the interaction of PDOs granted under the EU system and what level of protection would be offered going forwards to existing PDOs in the UK and whether the UK continues with its own system of protected designations and geographical indications for distinctive UK foods (such as cheeses and pork pies) and beers/wines (such as ales and bitters).

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