Talking Shop Summer 2018

Welcome to the summer edition of our Retail & Consumer monthly news round-up. This newsletter focuses on key news and updates for retail and consumer-facing businesses around the world.

At the end of the newsletter, you can also find details of some of our upcoming events, which we think might be of interest to you and your team.

Please get in touch, or visit our webpage for more information about Bird & Bird's Retail & Consumer Group.

In this newsletter:

Banking & Finance

The Payment Systems Regulator publishes draft terms of reference in preparation for market review into card acquiring industry

The Payment Systems Regulator (PSR) has published a draft terms of reference for a market review into the supply of card-acquiring services. Market reviews are one of the PSR's tools for investigating how well a given market is working for service-users in line with its statutory objectives.

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PSD2 added to online interactive single rulebook and Q&A

The European Banking Authority (EBA) has just included PSD2 to its online Interactive Single Rulebook and Q&A tool. It will now be possible to navigate through PSD2 and all corresponding Technical Standards, Guidelines and related Q&A, on an article by article basis. The Interactive Single Rulebook is available here.

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Competition & EU Law

E-commerce under scrutiny - the Commission sets out its interpretation of the Coty judgment

Nearly a year after the publication of its final report on its E-commerce sector enquiry, and following the European Court of the Justice's (CJEU) long awaited Coty judgment, the European Commission published a Competition Policy Brief in April 2018 (the Brief) setting out its interpretation of the judgment, in relation to bans on the use of online marketplaces. The Brief aims to address the status of such contractual bans which had been left open in the E-commerce sector enquiry report pending the judgment in Coty.

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Data Protection

Spain adopts urgent measures to fill the gap between GDPR and pending national legislation detailing domestic derogations

On 27 July, two months after the General Data Protection Regulation (EU/2016/679), the "GDPR") came into force, the Spanish government passed Royal Decree-law 5/2018 which brought in urgent measures for the adaptation of Spanish law in line with EU regulation with regards to data protection.

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Australia's regulatory approach to the issue of modern slavery

Current statistics suggest there are more than 40 million victims of modern slavery worldwide, with over half of the victims being exploited in the Asia-Pacific region in industries including agriculture, construction, electronics, extractives, fashion and hospitality.

Last week, the New South Wales State government and the Australian Federal government each took important steps towards addressing the issue of modern slavery.

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Reforms to IR35 regime incoming?

The UK government is considering reform of the "IR35" regime; a move which could have significant tax implications for private sector organisations that engage individuals through intermediaries, such as personal service companies ("PSCs").

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National Minimum Wage - a reminder of the common pitfalls

In early July, the names of 239 employers who underpaid the National Living and Minimum Wage were published by the government. A record 22,400 UK workers are to receive a total of £1.44m in backpay, with the employers being fined £1.97m in total, more than in any previous single naming list.

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Australia - your franchising inquiry cheat sheet

There has been much in the press recently in relation to the Australian Senate inquiry into the franchising industry. With the public hearings and submissions now closed, a report is expected by 6 December 2018. We set out a summary of the key events so far in the inquiry, and what is still to come.

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Distributorship or franchise?

We often see confusion about the differences between distribution and franchise agreements, and the situations in which each should be used. There are key differences between the two types of agreement and the relationship they seek to establish, and careful consideration should be undertaken prior to entering into either.

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Copyright - first ownership, assignment and infringement of designs

The IP Enterprise Court (IPEC) has determined first ownership and assignment of copyright, and considered infringement of copyright in greetings cards designs.

Where acts are carried out in the course of employment copyright vests in the employer (section 11, Copyright, Designs and Patents Act 1988) (CDPA).

Where a name claiming to be that of the author appears on copies of the work as published, that person is presumed to be the author of the work until the contrary is proved (section 104(2), CDPA) (section 104(2)).

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Trade & Customs

Will China's upcoming export controls impact your business?

Companies having China-related operating activities should watch out for and anticipate on the upcoming transformation of China's export control framework and system. China's released draft Export Control Law ("ECL") , currently pending introduction at the National People’s Congress, may affect major MNEs and SMEs operating in- and outside China which are engaged in the manufacture, development, use and/or supply of China-related products (including components) and technologies – especially – in the high-tech sector.

Read more >


Drone Regulation - UK and EU changes

The announcement in May 2018 of changes to the small UAS regime under the UK Air Navigation Order is a small step towards more liberalised, and safer, drone operations for both business and leisure purposes.

The current UK drone regime disapplies many ANO requirements for line of sight operations of UAVs less than 20kg ('SUA' in ANO parlance). The main elements of this regime remain in place, including the requirement for permission for commercial operations. However, the amendment laid before Parliament on 30 May makes a number of changes.

Read more >

Events & Activities


First for Retail & Consumer Disputes
27 September, London

Please save the date for our First for Retail & Consumer Disputes Conference in London. You will hear about cyber security and the measures to take to ensure your business is safe, what the EU Trade Secrets Directive means for your business, and issues to consider when dealing with contractual brand disputes. Register your interest here.

Other events you might be interested in:

EU Competition & Compliance training seminar - for Japanese companies who operate in the EU
7 September, Paris

Australia and the APAC Region – Investment strategies, structures and market entry opportunities
11 September, Frankfurt

Livsmedelsgolfen 2018
12 September, Tylösand

European Drone Law
13 September, webinar

Roundtable on the Geo-blocking
18 September, Amsterdam

Case Law & Canapés - Annual Employment Law Update
20 September, London

Our News

Spotlight on Hotels & Leisure

Bird & Bird's international Hotels & Leisure offering continues to go from strength to strength since the appointment of Real Estate Partner, Karen Friebe, in January. You can find out more about the team's expertise on our webpage, and download our industry jargon buster here. We will also be running a conference for hotel and leisure businesses in our London office early next year - further details will be published in this newsletter in the coming months. Please get in touch with Karen if you would like to learn more about our team's expertise.

In other news:

Our French corporate team advises L'Appart Fitness on its fundraising and acquisition of Amazonia, Gigagym and Wideclub.

Bird & Bird appoints Dr Kai Westerwelle as a partner in the firm's San Francisco office, opening September.

Our Finnish team excels in Mergermarket's M&A league table rankings.

Bird & Bird achieves top recognition in Chambers Latin America 2019.


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