UK

Public Contracts Regulations 2015

In March we reported on the Public Contracts Regulations 2015 which transposed the EU Public Procurement Directives into UK law ahead of time and introduced some additional ‘gold-plating’ following the recommendations of the Lord Young Report on Growing Micro Businesses. The Regulations are intended to increase the level of transparency in public procurement in order to improve opportunities for SMEs and are applicable to procurements commenced on or after February 2015.

ADR Regulations

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (ADR Regs), which implement the ADR Directive, came into force on 9 July 2015. In June 2015, the ADR Regs were amended by the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (The ADR Amendment Regs) which come into force partly on 9 January 2016 and partly on 9 July 2015. The ADRAmendment Regs pushed back the coming into force of parts 4 and 5 of the ADR Regs to 1 October 2015. They also include the trader to consumer information requirements from the Online Dispute Resolution Regulation.

If you are a trader dealing with consumers in the EU, there are new sets of information requirements. Some came in on 1 October 2015, and there are potentially more to follow on 9 January 2016, for online traders and marketplaces (although that depends on the pan-European Online Dispute Resolution platform being up and running by that time which is currently under question, despite implementing regulation having been brought in in July). See here for more detail.

Modern Slavery Act 2015

The UK’s Modern Slavery Act 2015 (MSA) came into force on 29 October 2015. It introduces a new requirement for global organisations (incorporated businesses and partnerships) carrying on any part of their business in the UK, supplying goods or services and with an annual global turnover of over £36m, to publish a slavery and human trafficking statement on the home page of their website. This applies whether or not the organisation is incorporated in the UK. Seehere for more.

Small Business, Enterprise and Employment Act 2015

The majority of the Small Business, Enterprise and Employment Act 2015 (SBEE), came into effect on 26 May 2015. This includes the provisions empowering the Secretary of State to pass regulations which will require companies to publish information about their payment practices for business to business contracts for goods, services or intangible assets. It is expected this will be implemented by April 2016 and that it will apply to large private companies, large LLPs and large quoted companies but not to small and medium sized quoted companies.

S1 SBEE provides for the power to invalidate certain restrictive terms of business contracts to be made by appropriate regulators in relation to “non-assignment of receivables term” of a contract i.e. a term which prohibits or imposes a condition, or other restriction on the assignment by a party to the contract in relation to the right to be paid any amount under the contract or under any other contract between the parties.

SBEE also brings in provisions allowing the Competition and Markets Authority to make written recommendations to UK government ministers on how legislative plans could impact competition in UK markets. The CMA has said it will use the new powers sparingly.

EU

Regulation on mobile roaming and the open internet

The European Parliament has adopted the new Regulation on mobile roaming and the open internet, choosing not to make last minute changes to the net neutrality provisions which have come under attack for containing too many exceptions.

Mobile roaming charges in the EU will be dropped entirely by 2017 after a periodic reduction in charges for calls, SMS and data.

The net neutrality provisions will take effect from 30 April 2016 although conflicting local Member State provisions may continue to apply until the end of 2016 provided they are notified to the Commission before the EU provisions come into force. While the EC claims that net neutrality is now enshrined into EU law, the legislation has been much criticised for including relatively broad exceptions to the requirement that all internet traffic be treated equally. Blocking, throttling and prioritisation of paid-for content are prohibited but there are exceptions for:

  • reasonable day-to-day traffic management according to justified technical requirements, which must be independent of the origin or destination of the traffic and of any commercial considerations;
  • internet access providers to introduce network security features (e.g. internet anti-virus, anti-DDoS etc.) and or blocks against truly illegal content, such as child pornography or court / public authority-ordered blocks against internet piracy websites; and
  • ISPs to offer optional features like email spam filters or Parental Controls (the latter may block pornography etc.). This must be done “with the prior request or consent of end-users and the possibility to withdraw the consent, and thus such filters, at any time“, which makes it difficult for ISPs to impose default network-level censorship without first getting their customers’ approval.

The recast Brussels I Regulation

The Brussels I Regulation sets out the rules which apply on jurisdiction of courts in disputes involving links to more than one EU Member State. It was introduced in 2001 but was felt to be in need of updating and reform. Changes were finalised in 2012, and have now come into force. The Brussels I Regulation has been recast (the Recast Regulation), bringing in some significant changes to the previous regime which will apply to court proceedings issued in the EU on or after 10 January 2015. The Recast Regulation applies to determine jurisdiction between the courts in Member States. The general default position is unchanged in that a defendant should be sued in his country of domicile, subject to exceptions and alternative grounds on which the court can take jurisdiction. There have, however, been changes to the enforceability of jurisdiction clauses, relations with courts in third states and to arbitration. Read more here.