It remains unclear whether the UK will leave the European Union without a deal on 31 October. To help gambling organisations make sure they are prepared for "No Deal", the government has issued an 8-point checklist for "gambling organisations".
The government's checklist is divided into four broad categories: Employees, Data, Services (including online) and Importing hardware. While the government appears to have identified the points that are likely to be of most relevance to gambling operators generally, the list is not exhaustive and it will be important for gambling operators to continue to create "No Deal" Brexit plans that are tailored to their business and seek bespoke advice where appropriate.
The first three steps in the government's checklist relate to employees providing services in other countries or living or working in the UK.
"Step 1 – Check if your employees need a visa or work permit and meet any requirements for their profession to work in the country they're going to."
The government refers gambling organisations to its advice relating to employees providing services to EU and EFTA countries, which has been collated with individual country guides: Providing services to the EU, Iceland, Liechtenstein, Norway or Switzerland after Brexit: collected guidance. In respect of Malta, for example, the government notes that different requirements are likely to need to be met depending on, for example, the relevant employee's occupation, the activity they plan to do and how long they plan to stay in Malta.
Where employees who are British nationals will be travelling to the EU as a visitor (whether for business or for pleasure), they will have a time-limited ability to remain in the EU of no more than 90 days in any 180-day period. The 90 days can be cumulative across multiple trips.
"Step 2 – Ask your employees to check if they need to apply to the EU Settlement Scheme."
The government's list encourages checking whether employees need to apply to the EU Settlement Scheme, to ensure that they will be able to continue living or working in the UK as they do now. If the UK leaves the EU without a deal the deadline for applying will be 31 December 2020.
"Step 3 – Check what you need to do to make sure you can travel through the border of the country you are visiting."
The government sets out practical guidance for travel to the EU following a "No Deal" Brexit, and encourages business travellers to check the entry requirements for the country they are visiting. The government notes that this includes employees crossing into Spain from Gibraltar. Where an organisation's staff are travelling to an EU country after a "No Deal" Brexit, bespoke advice will be required as to whether, for example, a visa will be required.
"Step 4 - Check if you need to change the way you access personal data from the EU/EEA."
Organisations that receive personal data from the EU/EEA are advised to review their contracts to ensure that those data flows can continue. International data transfers will be a key issue for many gambling businesses. In addition to transfers of personal data from the EEA to the UK, it will be necessary to consider transfers of personal data from the UK to other jurisdictions, and from other jurisdictions to the UK. Further, it will be necessary to consider whether an EEA representative is needed and the consequences of having to comply with dual regulatory regimes (GDPR, and the "UK GDPR" that will be in effect after a "No Deal" Brexit). For an overview of practical steps that organisations should consider taking in relation to data protection should the UK leave the EU with "No Deal", see our briefing, "No deal Brexit and data protection" (October 2019).
"Step 5 - Check if you need to change how you do accounting and reporting."
The checklist warns of the risk of breaching accounting and reporting requirements in EEA countries following a "No Deal" Brexit. In separate guidance, "Accounting for UK companies after Brexit" (updated September 2019), the government acknowledges that the changes to the UK's corporate reporting regime will affect a small number of companies. Organisations should, however, check whether any of the changes might apply to them. For example, UK incorporated parent companies with a subsidiary in the EEA will need to check the reporting requirements in the country where the subsidiary is based.
"Step 6 - Appoint a representative in the EU if you run a large UK-based online business providing digital services in the EU."
The government's checklist refers here to the requirements of Network & Information Systems (NIS) Directive, which provides for legal measures to boost the overall level of network and information system security in the EU. The Directive applies to operators of essential services and "relevant digital service providers". If an organisation in the UK falls within the scope of the NIS Directive (often not a clear cut question in itself), and offers services in the EU, it may need to appoint a representative in one of the EU member states in which it offers services. That organisation will then need to comply with the domestic legislation implementing the NIS Directive in that member state. On the other hand, if a UK-based digital service provider within the scope of the Directive offers services in the UK, only the UK's NIS Regulations will continue to be relevant.
The government's checklist advises UK based organisations with .eu domain names to read the government's guidance, ".eu domain names - what to do if there's on Brexit deal" (updated 27 September 2019). Organisations should also consult the guidance on the EurID website. Potential steps that organisations may need to take include putting any .eu domain names into the ownership of a qualifying company before exit (in the event that there is a "No Deal" exit).
"Step 7 - Check if you need to change your contracts to provide licensed content outside the UK."
The government notes that organisations may not be able to provide licensed content outside the UK if they do not get extra copyright permissions: government guidance: "Changes to copyright law in the event of no Brexit deal" (updated 5 September 2019). Although the government identifies copyright in particular, it would be prudent for organisations to review all licences relating to IP rights to check that they are still fit for purpose. Please refer to our website briefing for details of what a "No Deal" scenario will mean for IP rights: "Brexit rights and IP: No Deal planning update" (October 2019). In particular, whilst existing EU trade marks and designs will be preserved automatically in the UK post-exit (as a UK right), any pending applications will not be treated in the same way. Where an EU trade mark or design application is pending post-exit, the applicant will need to file a separate application in the UK (there will be a nine month priority window in which to do this).
"Step 8 - Get your business ready to import hardware from the EU to the UK after Brexit."
The final step in the checklist is relevant to any gambling businesses that import hardware into the UK from the EU. The government advises any such businesses to check "what you need to do now to make sure you're able to import hardware from the EU, if the UK leaves the EU without a deal."
If you have any questions on the government's checklist or you would like to discuss your preparations for "No Deal" Brexit generally, please contact a member of the Mishcon Betting & Gaming team or your usual Mishcon contact.