Doing Business in the United Kingdom

A Q&A guide to doing business in the United Kingdom.

This Q&A gives an overview of key recent developments affecting doing business in the United Kingdom as well as an introduction to the legal system; foreign investment, including restrictions, currency regulations and incentives; and business vehicles and their relevant restrictions and liabilities. The article also summarises the laws regulating employment relationships, including redundancies and mass layoffs, and provides short overviews on competition law; data protection; and product liability and safety. In addition, there are comprehensive summaries on taxation and tax residency; and intellectual property rights over patents, trade marks, registered and unregistered designs.

To compare answers across multiple jurisdictions, visit the Doing business in... Country Q&A Tool.

This article is part of the global guide to doing business worldwide. For a full list of contents, please visit www.practicallaw.com/dbi-guide.

Gwen Souter, Kenneth Shand, Laura Morrison, Ross Nicol and Michael Dean, Partner, Maclay Murray & Spens LLP (Lex Mundi Member Firm)
Contents

Overview

1. What are the key recent developments affecting doing business in your jurisdiction?

The Consumer Rights Act 2015 (CRA) is due to come into force in October 2015 and aims to provide a new comprehensive code on unfair terms in consumer contracts and communications. The CRA:

  • Applies to contracts and communications between businesses and a "consumer" (an expression that is far more broadly defined than currently found in UK law).

  • Requires that a court must take their own initiative and consider terms of business for fairness even in cases where neither party to the proceedings has raised fairness as an issue.

  • Grants consumers new cumulative remedies with the right to require repeat performance by the business and/or the right to a price reduction.

  • Provides that oral or written statements made by the business about it or its services can take on contractual status.

  • Expressly regulates contracts for the supply of digital content introducing consumer protections for this type of contract.

The regulator for the financial sector, the Financial Services Authority has now become two separate regulatory authorities:

  • The Financial Conduct Authority.

  • The Prudential Regulation Authority.

The FCA obtained full competition law enforcement power on 1 April 2015. A unique feature of the FCA's powers is that regulated firms are required to self-report significant competition law infringements to the FCA. A subsidiary of the FCA, the Payment Systems Regulator, regulates payment services systems.

It is expected that the European Unified Patent System is likely to be implemented in 2017, with a transitional period of at least seven years. Once the system is in place, patent applicants in the UK will have the option to apply for a single European patent, applicable in every member state.

There continues to be further devolution of taxation on a miscellaneous basis to the nations of the UK. Land and Buildings Transaction Tax and Scottish Landfill Tax replaced the UK Stamp Duty Land Tax (SDLT) and Landfill Tax in Scotland from 1 April 2015. There are also legislative proposals for a separate corporation tax rate for Northern Ireland, for the devolution of SDLT to Wales and for further devolution to Scotland (including income tax rates and air passenger duty).

The Small Business, Enterprise and Employment Act 2015 received royal assent on 26 March 2015 and it will introduce over the coming year some quite important company law changes. The most important changes are as follows:

  • New register of persons with significant control (provisional implementation date January 2016). All private and public companies incorporated in the UK, (except publicly-traded companies that are already subject to similar disclosure regulations) will be required to maintain and keep available for public inspection a register of persons with significant control (known as "PSC register"). A person will be considered to have significant control over a company if he has an interest in more than 25% of the shares or voting rights, or otherwise exercises significant control over the company and its management. Companies will be obliged to take reasonable steps to identify the persons they know or suspect to have significant control, including the obligation to give notice to such persons and others in order to obtain the required information. The information on the new PSC register will also need to be filed at Companies House annually.

  • The main purpose is to increase transparency by ensuring that the people with significant controlling rights in a company are easily identifiable.

  • Abolition of corporate directors (provisional implementation date October 2015). UK companies will not be permitted to appoint corporate directors, with certain exceptions that are currently debated by the government. Existing corporate directors will automatically cease to be directors one year after the new act comes into force.

  • New option to keep certain company registers at the central registry (provisional implementation date April 2016). Companies will, with shareholder approval, have the option to stop maintaining some of their statutory registers. Instead, companies will be able to elect to keep their registers of members, directors and secretaries and the new PSC register on a central register at Companies House.

  • Annual returns replaced (provisional implementation date April 2016). Companies will be absolved from the requirement to submit an annual return. Instead, companies will be required to deliver, or update as necessary, similar information at any time during a 12 month period (the new "confirmation statement").

 

Legal system

2. What is the legal system based on (for example, civil law, common law or a mixture of both)?

Scotland, England and Wales, and Northern Ireland are largely separate jurisdictions for a number of legal purposes, in particular, property and litigation.

Scotland has a mixed common law and civil law system whereas England and Wales and Northern Ireland have a common law system.

The following answers apply to England and Wales and Scotland, unless otherwise stated.

 

Foreign investment

3. Are there any restrictions on foreign investment (including authorisations required by central or local government)?

In general, there are no restrictions on foreign ownership or investment. However, authorisation is required for investment in certain regulated areas, including:

  • Banking.

  • Media.

  • Financial services.

  • Defence.

Foreign investors should be aware of EU competition rules and sector-specific regulations in, for example, the utilities sector.

 
4. Are there any restrictions on doing business with certain countries or jurisdictions?

Licences are required for the export of certain controlled goods outside of the EU (only particularly sensitive goods require a licence for EU countries). Controlled goods include:

  • Military goods.

  • Dual-use goods (civilian goods with a potential military use or application).

  • Associated technology or software, and goods which could be used for torture or radioactive sources.

Such items may appear on one of a number of lists maintained by the UK Government or be subject to control because of the potential end-use or end-user. Whether a licence is required can also depend on the export destination and any sanctions in force on that destination. Trafficking or brokering such items is also subject to a trade licensing regime.

Iran is subject to the tightest controls, which prohibit the export of certain goods to Iranian entities or for use in Iran. Certain technical assistance, investments and financial transactions are also prohibited. Licences may be available for activities which are not prohibited, but advice should be taken before doing any business in, or involving, that jurisdiction or Iranian entities, given the serious penalties for non-compliance (that is, up to two years' imprisonment and fines) and the regularity with which the rules are subject to change. To date, there has been no relaxation of the export control rules relating to Iran, despite the signing of the Joint Comprehensive Plan of Action on 14 July 2015.

Export control advice can be obtained from the Export Control Organisation (the UK government's regulatory body for export licensing). Guidance is available at: www.gov.uk/about-the-export-control-organisation. An export control licence can be applied for using SPIRE, the government’s online system (www.spire.bis.gov.uk).

 
5. Are there any exchange control or currency regulations?

There are no exchange control or currency regulations, except those relating to money laundering. The Money Laundering Regulations apply to various categories of businesses, including:

  • Most UK financial and credit businesses, such as bureaux de change, cheque cashers or money transmitters.

  • Independent legal professionals.

  • Accountants, tax advisers, auditors and insolvency practitioners.

  • Estate agents.

  • Casinos.

  • High value dealers, that is, businesses that accept cash payments for goods worth EUR15,000 or more, either in a single transaction or in instalments.

  • Trust or company service providers.

 
6. What grants or incentives are available to investors?

Grants vary throughout the UK. There is a wide range of grants available in the UK to support private sector investment by foreign and domestic investors. Grants can cover capital expenditure, job creation, research and development, and energy projects. For further information, see www.gra-ukgrants.com or www.scottish-enterprise.com/fund-your-business.

Funding from the EU generally favours research and development. Investors should be aware of European state aid rules when receiving grants or incentives from public authorities.

 

Business vehicles

7. What are the most common forms of business vehicle used in your jurisdiction?

The common forms of business vehicle used in the UK are:

  • Public and private companies limited by shares, governed by the Companies Act 2006. The company is a separate legal entity and the liability of shareholders for the debts of the company is limited to the amount they subscribe for their shares except in very limited circumstances. A company may have only one shareholder. Public companies are subject to greater regulation than private companies, but have the ability to offer shares to the public, which private companies are not able to do.

  • General partnership, governed by the Partnership Act 1890. General partnerships have separate legal personality in Scotland, but not in England and Wales. The partners have unlimited liability and each has authority to act as agent for the partnership. There must be at least two partners. There are no registration or reporting requirements.

  • Limited liability partnership (LLP), governed by the Limited Liability Partnerships Act 2000. An LLP has separate legal personality in both Scotland and England and Wales. Members generally have limited liability, and the LLP must file annual accounts and other information. Each member is an agent of the LLP. There must be at least two members.

Trusts could technically be used, however this is rare because they are not as flexible and do not provide the protection of limited liability.

The most common form of business vehicle used by foreign companies is a private company limited by shares as it provides the protection of limited liability and has fewer corporate governance requirements than a public company.

 
8. In relation to the most common form of corporate business vehicle used by foreign companies in your jurisdiction, what are the main registration and reporting requirements?

Registration and formation

Ready-made companies are available from solicitors or company formation agents. When forming a company, the following documents must be sent to Companies House (the official UK government register):

  • Memorandum of association stating that the subscribers wish to form a company and agree to take at least one share.

  • Articles of association, except where the default statutory model articles are adopted without modification.

  • Form IN01 detailing basic company details including its name, the type of company and details of its share capital, registered office, directors and company secretary (if the company chooses to have a secretary).

The Registrar of Companies provides a certificate of incorporation. Registration takes between eight and ten days, and costs GB£40. A company can be incorporated within one day for a fee of GB£100. Alternatively a web incorporation service can be used at a cost of GB£15. Full details can be found at www.companieshouse.gov.uk

The name of a private company limited by shares must end in the word "limited" or the abbreviation "Ltd". The name must not be the same as an existing name and there are restrictions on the use of certain sensitive words, expressions or offensive names. There are also controls on the use of certain characters, signs, symbols and punctuation. After incorporation, a company can be required to change its name in certain circumstances, including if the name is too like an existing name, too similar to a name in which someone else has goodwill, or if it gives a misleading indication of the nature of the company's activities.

Reporting requirements

A company must submit to the Registrar of Companies:

  • An annual return (see below).

  • Annual accounts.

With effect from April 2016, instead of the requirement to submit an annual return to the Registrar of Companies, companies will be required to deliver similar information at any time during a 12 month period (the new "confirmation statement") (see Question 1).

There are exceptions to the account filing requirements depending on thresholds relating to company turnover, balance sheet total and number of employees.

There is a fee for filing the annual return of GB£40 (or GB£13 if delivered electronically). It is a criminal offence not to deliver the company's annual return within 28 days of the made-up date. The accounts of a private company must be filed within nine months of the end of the financial period to which they relate. There is no charge for filing the company's annual accounts, although there is an automatic civil penalty (in the form of a statutory fine) for late filing of accounts.

In addition, the company must file copies of certain shareholder resolutions and notify all changes to its particulars from time to time, such as:

  • Registered office.

  • Directors' details.

  • Allotment of shares.

Share capital

There is no maximum or minimum share capital for a private limited company.

Non-cash consideration

Shares can be issued for non-cash consideration. No formal valuation process is required for a private limited company.

Rights attaching to shares

Restrictions on rights attaching to shares. Companies are generally free to determine the rights attaching to their shares, although the Companies Act 2006 imposes some limits, for example:

  • No dividend can be paid except out of distributable profits.

  • There are restrictions on the company's ability to redeem or purchase its own shares.

Specific rights and restrictions on different classes of shares are usually set out in the company's articles of association.

Automatic rights attaching to shares. If there is only one class of share in the company, the shareholders can share in any dividends or permitted return of capital on the basis of the number of shares they hold or, if the articles of association allow it, the amount paid up on their shares. In the absence of any contrary provision in the articles of association, the Companies Act 2006 provides default voting rights of one vote per share on a written resolution or a poll.

 
9. In relation to the most common form of corporate business vehicle used by foreign companies in your jurisdiction, outline the management structure and key liability issues.

Management structure

Private companies typically have a single-tier board with at least one director who must be a natural person. Directors can be executive (usually with a service contract) or non-executive, with varying roles and duties.

With effect from October 2015 (provisional implementation date), UK companies will not be permitted to appoint corporate directors, with certain exceptions that are currently being debated by the governement. Existing corporate directors will automatically cease to be directors one year after The Small Business, Enterprise and Employment Act 2015 comes into force.

Management restrictions

There are no restrictions on foreign directors.

Directors' and officers' liability

Directors are personally liable for, among other things:

  • Breach of their fiduciary duties and their duty to act with reasonable skill and care (Companies Act 2006).

  • Fraudulent or wrongful trading if the company becomes insolvent (Insolvency Act 1986).

Directors can be disqualified for up to 15 years for general misconduct or for unfitness (Company Directors Disqualification Act 1986).

Directors, managers and any company secretary must ensure the company keeps proper accounting records, maintains the proper registers and complies with its reporting requirements (Companies Act 2006). Default is a criminal offence.

Under the Small Business, Enterprise and Employment Act 2015, with effect from October 2015 (the provisional implementation date) disqualification of company directors will be made easier. The act will provide for a more extensive list of factors to be taken into account when determining whether an individual is unfit to be a director, including materiality of past conduct, misconduct overseas, culpability and breach of sectoral regulation as well as general directors' duties.

Parent company liability

Parent companies are not automatically liable for the debts or other liabilities of their subsidiaries except in certain cases, such as fraudulent and wrongful trading, transfers of assets at an undervalue, and unlawful distributions.

 

Employment

Laws, contracts and permits

10. What are the main laws regulating employment relationships?

The main employment statutes include the:

  • Trade Union and Labour Relations (Consolidation) Act 1992.

  • Employment Rights Act 1996.

  • National Minimum Wage Act 1998.

  • Children and Families Act 2014.

  • Equality Act 2010.

There is secondary legislation covering areas such as:

  • Working time.

  • Part-time workers.

  • Fixed-term employees.

  • Agency workers.

  • Informing and consulting employees.

  • Business transfers.

  • Maternity, paternity, adoption and shared parental leave.

Statutory provisions can apply to both foreign employees working in the UK and employees from the UK working abroad, depending on the statutory provision in question. Mandatory statutory provisions apply regardless of any choice of law in the employment contract, such as in relation to redundancy pay, minimum notice periods and the right to claim unfair dismissal.

 
11. Is a written contract of employment required? If so, what main terms must be included in it? Do any implied terms and/or collective agreements apply to the employment relationship?

A written statement of certain employment terms must be given to each employee within two months of commencing employment (Employment Rights Act 1996).

Terms of employment can also be recorded in or arise out of:

  • Employee handbooks.

  • Collective agreements.

  • A course of dealing between employer and employee.

Mandatory terms are implied into the employment relationship by:

  • Statute.

  • Common law.

The most common implied term is a mutual obligation of trust and confidence.

 
12. Do foreign employees require work permits and/or residency permits?

European Economic Area (EEA) and Swiss nationals can:

  • Enter and live in the UK without applying for permission.

  • Start work without a permit.

Transitional arrangements for Croatian nationals were introduced from 1 July 2013 and generally require the individual to apply for a registration certificate (worker authorisation).

Non-EEA nationals must usually obtain permission to work or train in the UK under the UKVI points-based system. Grant of permission to work or train in the UK includes permission to enter or remain for a limited period. There are five tiers as follows:

  • Tier 1: entrepreneurs, investors, graduate entrepreneurs and individuals who demonstrate exceptional talent in the fields of art or science.

  • Tier 2: sponsored skilled workers with a job offer, including those transferring from an associated company overseas.

  • Tier 3: unskilled workers, although this category has not been opened to date.

  • Tier 4: students.

  • Tier 5: temporary workers and the youth mobility scheme.

Applicants are awarded points based on, for example:

  • Sponsorship.

  • Salary.

  • Available maintenance funds.

  • English language abilities.

The cost of applications varies depending on the type of application made and whether the applicant is inside the UK when applying.

Applicants under tiers 2 and 5 must be sponsored by a licensed sponsor. Employers must apply to register as licensed sponsors. This separate application involves a fee and a processing time of about eight weeks, and must be renewed every four years.

Termination and redundancy

13. Are employees entitled to management representation and/or to be consulted in relation to corporate transactions (such as redundancies and disposals)?

Employees are not entitled to management representation by statute.

Employers must consult:

  • Individuals in redundancy situations.

  • Appropriate employee representatives if proposing to dismiss 20 or more people by reason of redundancy at one establishment within a period of 90 days or less. There are minimum consultation periods depending on the number of employees affected.

  • Employees or employee representatives if they might be affected by the transfer of an undertaking.

  • Employees before making certain changes to pension schemes.

  • Appropriate employee representatives about arrangements for promoting, developing and checking the effectiveness of measures to ensure the health and safety of their employees.

  • Trade union representatives where there is a recognition agreement in operation which provides for this.

The Information and Consultation of Employees Regulations 2004 establish a general framework for informing and consulting employees. In certain defined circumstances, employers who employ more than 50 staff must inform and consult employee representatives in relation to a number of issues.

 
14. How is the termination of individual employment contracts regulated?

Statutory minimum periods of notice are set out in the Employment Rights Act 1996, and provide for one weeks' notice for each year of service up to a maximum of 12 weeks. Contracts of employment can provide for enhanced notice periods, and also for the termination of employment on a fixed date or on a fixed event.

Employees are protected from being unfairly dismissed. Employers are at risk of an employee submitting a claim for unfair dismissal, unless the dismissal is for one of the five potentially fair grounds for dismissal, being:

  • Capability.

  • Conduct.

  • Redundancy.

  • Breach of statute.

  • Some other substantial reason (such as a business re-organisation).

The employer must follow the Acas Code of Practice on Disciplinary and Grievance Procedures when carrying out dismissals on the grounds of misconduct and poor performance. Failure to comply with the Acas Code can result in any compensation being increased by up to 25%.

There are other fair process requirements relating to particular grounds for dismissal which have developed from case law (including in relation to carrying out a redundancy dismissal) or which are set out in statute.

Employees usually require two years' service to raise an unfair dismissal claim, unless the reason for the dismissal is one for an "automatically unfair" reason (including dismissals as a result of pregnancy or membership of a trade union) where there is no minimum service requirement.

An unfairly dismissed employee can be entitled to:

  • Reinstatement/re-engagement.

  • Compensation.

 
15. Are redundancies and mass layoffs regulated?

Redundancies and layoffs are regulated by the:

  • Employment Rights Act 1996.

  • Trade Union and Labour Relations (Consolidation) Act 1992.

An employer must consult with appropriate employee representatives if proposing to dismiss 20 or more people by reason of redundancy at one establishment within a period of 90 days or less. There are minimum consultation periods depending on the number of employees affected. Individual consultation is also required before any dismissal for redundancy.

To ensure that redundancy dismissals are fair, the employer must consider, among other things:

  • Consultation.

  • Selection criteria.

  • Reasonable notice periods.

  • Redundancy payments.

  • Reasonable time off work to look for another job.

  • Notification to the Secretary of State where collective redundancies are proposed.

Employees continuously employed for two years and dismissed due to redundancy are entitled to a statutory redundancy payment.

Employers must have an express contractual right in order to lay off an employee without payment.

   

Tax

Taxes on employment

16. In what circumstances is an employee taxed in your jurisdiction and what criteria are used?

There is a statutory residence test introduced from 6 April 2013 (that is, for the 2013/14 tax year onwards), subject to transitional rules in certain cases.

An individual is automatically a non-UK resident if he meets one of the conditions of the "automatic overseas test". If not, the person will qualify as a UK tax resident by satisfying one of the conditions for the "automatic UK test". If the automatic tests are not satisfied, an individual's tax residence status is determined by reference to the "significant ties test", the test considers the extent of his ties to the UK. The statutory test is intended to provide greater certainty as to whether or not an individual is a UK tax resident. However, it is quite complex and it is recommended that detailed advice on an individual's personal circumstances is obtained. HM Revenue and Customs have produced guidance on the statutory resident test which can be found at www.gov.uk/government/uploads/system/uploads/attachment_data/file/381705/rdr3_1_.pdf.

 
17. What income tax and social security contributions must be paid by the employee and the employer during the employment relationship?

Tax resident employees

The tax-free personal allowance for the 2015/16 tax year is GB£10,600. The personal allowance is withdrawn gradually for those with adjusted net income of more than GB£100,000 so that no personal allowance is available when income exceeds GB£121,200.

Employees must pay income tax on income over the personal allowance level. The rates of tax on taxable income (that is, income above the personal allowance) for the tax year 6 April 2015 to 5 April 2016 are:

  • Basic rate. Paid on first GB£31,785 of taxable earnings at a rate of 20%.

  • Higher rate. Paid on taxable earnings between GB£31,786 and GB£150,000 at a rate of 40%.

  • Additional rate. Paid on taxable earnings over GB£150,000 at a rate of 45%.

There is also a 0% starting rate for savings income only, with a limit of the first GB£5,000 of taxable income (that is, income above the personal allowance). If an individual's taxable non-savings income is above this limit then the 0% rate does not apply. A new personal savings allowance will be introduced from 6 April 2016 to remove tax on up to GB£1,000 of savings income for basic rate taxpayers and up to GB£500 for higher rate tax payers. Additional rate taxpayers will not receive an allowance.

Employees must pay national insurance contributions. Information about applicable rates can be found on the HM Revenue and Customs website, www.gov.uk/government/publications/rates-and-allowances-national-insurance-contributions/rates-and-allowances-national-insurance-contributions.

Non-tax resident employees

Subject to any double tax treaties, non-tax resident employees are liable to UK income tax on:

  • Earnings from employment where their duties are carried on in the UK.

  • UK-source investment income.

  • Income arising from property located in the UK.

Non-tax residents are generally not liable to pay national insurance contributions.

Employers

Employers must make national insurance contributions of 13.8% of an employee's gross salary.

Business vehicles

18. When is a business vehicle subject to tax in your jurisdiction?

Tax resident business

A company is tax resident if it is either:

  • Incorporated in the UK.

  • Managed and controlled from the UK.

Non-tax resident business

Non-tax resident companies with a permanent establishment in the UK are liable for corporation tax on:

  • Income profits of that establishment.

  • Gains from the disposal of assets situated in the UK that are used in the trade of the establishment.

Non-tax resident companies that do not trade through a permanent establishment must pay income tax on rents from UK property. The basic rate for the tax year 2014 to 2015 is 20%.

Permanent establishment is defined at www.hmrc.gov.uk/manuals/intmanual/INTM264050.htm.

 
19. What are the main taxes that potentially apply to a business vehicle subject to tax in your jurisdiction (including tax rates)?

Corporation tax

UK tax resident companies must pay corporation tax on their worldwide profits. The main rate for the financial year 1 April 2015 to 31 March 2016 is 20%. The government has announced its intention for the rate to reduce to 19% in 2017 and to 18% in 2020.

Diverted profits tax

A new diverted profits tax was introduced in the UK with effect from 1 April 2015. This new tax is an anti-avoidance measure that applies a 25% rate of tax. It is intended to apply to large multinational enterprises with business activities in the UK who enter into contrived arrangements to divert profits from the UK by:

  • Avoiding a UK taxable permanent establishment.

  • Other contrived arrangements with connected entities.

A credit is allowed against diverted profits tax for taxes paid that are calculated by reference to the profits being charged to diverted profits tax (that is, UK corporation tax, or a non-UK tax that corresponds to UK corporation tax). The diverted profits tax falls outside the scope of relief available under UK tax treaties.

Value added tax (VAT)

VAT is charged on:

  • Goods and services supplied in the UK by businesses.

  • Imported goods.

The standard rate is 20%. Some supplies are zero-rated (for example, books) and some are exempt (such as financial services).

Stamp duty/Stamp duty reserve tax

This must be paid on transfers of shares and certain securities. The standard rate is 0.5%, although a higher rate of 1.5% applies in certain cases where shares are transferred to depositories or into a clearance system.

Stamp duty land tax (SDLT)/Land and Buildings Transaction Tax (LBTT)

SDLT is a tax on land transactions in England and Wales. The rates for non-residential land are:

  • 1% of the net present value of lease transactions (including grants, variations and surrenders above GB£150,000).

  • Up to 4% of consideration paid for the acquisition of land above GB£150,000 in value. For residential property the rates were changed in December 2014 to a progressive system. They rise to:

    • 10% on consideration above GB£925,000; and

    • 12% on consideration above GB£1.5 million.

When residential property is acquired for more than GB£500,000 by a company, partnership with a corporate partner or a collective investment scheme the SDLT rate is 15%.

From 1 April 2015, LBTT applies in Scotland instead of SDLT. LBTT is similar to SDLT and the non-residential lease rates are currently the same as under SDLT. However the rates paid for the acquisition of land are different and LBTT is progressive for non-residential as well as residential property.

Business rates

Land owners must pay business rates on non-domestic premises. Business rates are usually an allowable deduction when calculating profits for corporation tax purposes.

Dividends, interest and IP royalties

20. How are the following taxed:
  • Dividends paid to foreign corporate shareholders?

  • Dividends received from foreign companies?

  • Interest paid to foreign corporate shareholders?

  • Intellectual property (IP) royalties paid to foreign corporate shareholders?

Dividends paid

Withholding taxes do not apply to dividends paid to foreign corporate shareholders.

Dividends received

Subject to conditions and anti-avoidance provisions, most foreign dividends are exempt from corporation tax under the tax rules.

Interest paid

A withholding tax of 20% applies to certain interest payments to foreign corporate shareholders, subject to any direction to pay gross or deduct a lower amount under a double tax treaty.

IP royalties paid

A withholding tax of 20% applies to patent royalties and annual payments to foreign corporate shareholders, subject to any direction to pay gross or deduct a lower amount under a double tax treaty.

Groups, affiliates and related parties

21. Are there any thin capitalisation rules (restrictions on loans from foreign affiliates)?

Thin capitalisation rules apply equally to loans to or from foreign affiliates, and loans between UK affiliates. If a UK company is thinly capitalised, the deductibility of interest payments is restricted.

 
22. Must the profits of a foreign subsidiary be imputed to a parent company that is tax resident in your jurisdiction (controlled foreign company rules)?

Revised controlled foreign company (CFC) rules were introduced for accounting periods commencing on or after 1 January 2013. Under the new rules, profits can only be imputed to a UK parent company if passed through one of the prescribed gateways and if the foreign subsidiary does not qualify for one of the entity-level exemptions. For example, an exemption would be available if it is subject to a level of local tax that is at least 75% of the UK tax that it would be subject to if it was UK tax resident.

 
23. Are there any transfer pricing rules?

Transfer pricing rules provide that transactions between UK companies and UK or foreign affiliates must be taxed on the arm's-length value of the transaction. These rules apply where any of the following conditions is satisfied:

One party has overall control of the other, or both are under common control.

One party holds at least 40% of the other's share capital and another entity also holds at least 40%.

A number of persons act together in relation to the financing arrangements of a business where collectively those persons would be capable of controlling the company if all their actual or potential rights and powers were aggregated.

In certain cases, the transfer pricing rules do not apply to small and medium-sized enterprises.

Customs duties

24. How are imports and exports taxed?

This depends on whether goods are imported or exported within the EU or outside it.

Outside the EU

Imports from outside the EU are subject to VAT, which is payable by the importer at the same rate as if the goods were supplied within the UK. Customs duty and excise duty may also be payable on imports.

Exports of goods outside the EU are subject to VAT but are generally zero-rated.

Within the EU

The supply of goods between VAT-registered traders is generally zero-rated (to qualify, the customer state code and VAT registration number must be put on the invoice). Where VAT is payable, the customer receiving supplies must pay VAT at his country's rate. VAT is charged in the normal way on sales to non-VAT registered customers.

Double tax treaties

25. Is there a wide network of double tax treaties?

The UK has double tax treaties with more than 100 countries, including the US and nearly all of Western Europe.

 

Competition

26. Are restrictive agreements and practices regulated by competition law? Is unilateral (or single-firm) conduct regulated by competition law?

Competition authority

In the UK, there are several competition authorities:

  • The Competition and Markets Authority (CMA) (covering the entire economy).

  • A number of others with largely concurrent jurisdiction in relation to particular sectors (including energy, financial services, telecommunications and broadcasting, water, rail and aviation).

The Financial Conduct Authority (FCA) obtained concurrent competition powers on 1 April 2015 and has extensive powers to require the self-reporting of significant competition infringements, which often concurrent regulators (and indeed the CMA) do not enjoy.

The CMA is the main competition regulator in the UK. The CMA aims to:

  • Create a single centre of expertise in public competition enforcement, guidance, advocacy and leadership for the UK.

  • Improve the utilisation of scarce public resources by eliminating duplication and overlap in the regime.

  • Promote competition, both within and outside the UK, for the benefit of consumers.

The Financial Conduct Authority's role in competition law in the financial services sector will increase from April 2015 when it receives full competition enforcement powers.

Restrictive agreements and practices

The main sources of UK competition law are:

  • The Competition Act 1998.

  • The Enterprise Act 2002 amended by the Enterprise and Regulatory Reform Act 2013. The Act:

    • provided for the merger of the two previous competition authorities;

    • increased powers in a number of areas;

    • made the conviction of those involved in criminal cartels easier.

The Competition Act introduced two prohibitions into UK law:

  • The Chapter I Prohibition (modelled on Article 101 of the Treaty on the Functioning of the European Union (TFEU)) of agreements which prevent, restrict or distort competition or which affect trade within the UK.

  • The Chapter II Prohibition (modelled on Article 102 of the TFEU) prohibits conduct by undertakings amounting to abuse of a dominant position.

The Chapter I Prohibition gives a non-exhaustive list of the types of agreement that will be caught, namely those which:

  • Directly or indirectly fix purchase or selling prices or any other trading conditions.

  • Limit or control production, markets, technical development or investment.

  • Share markets or sources of supply.

  • Apply dissimilar conditions to equivalent transactions with other trading parties, placing them at a competitive disadvantage.

  • Make the conclusion of contracts subject to supplementary obligations which have no connection with the subject of the contract.

An agreement only infringes the Chapter I Prohibition if it has an appreciable effect on competition in the UK and fails to qualify for an exemption. There is no appreciable effect on competition if:

  • Where the agreement is between competitors: their aggregate market share does not exceed 10% of any relevant market affected by the agreement.

  • Where the agreement is between non-competing undertakings: their market share does not exceed 15% of any relevant market affected by the agreement.

  • Where competition in the relevant market is restricted by various parallel networks of agreements with similar effects: thresholds are reduced to 5%.

To be exempted an agreement must:

  • Provide efficiency gains.

  • Allow consumers a fair share of the resulting benefits.

  • Not impose restrictions beyond those indispensable to achieving those objectives.

  • Not eliminate competition.

Criminal conduct

Alongside the Competition Act regime which applies to undertakings, under the Enterprise Act, it is a criminal offence for individuals to engage in certain types of cartel agreements. The Enterprise and Regulatory Reform Act 2013 removed the requirement for prosecutors to demonstrate dishonesty, making it easier to convict individuals. In addition, the Enterprise Act gives the CMA the power to apply to the courts to disqualify individuals from being directors of companies (a competition disqualification order (CDO)) where they are unfit to be directors as evidenced by the company infringing the competition laws.

Unilateral conduct

The Chapter II Prohibition (see above) deals with conduct by one or more undertakings amounting to an abuse of a dominant position on a market in the UK. An undertaking is dominant if it can act to an appreciable extent independently of its competitors and customers when making decisions.

Examples of offending conduct include:

  • Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions.

  • Limiting production, markets or technical development to the prejudice of consumers.

  • Applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage.

  • Making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which have no connection with the subject of the contracts.

Unlike the position in some jurisdictions, it is necessary for a company to be dominant before its unilateral conduct can be criticised. There is no concept of dependency.

Damages are regularly claimed for anticompetitive conduct. The Consumer Rights Act 2015 (CRA 2015) received Royal Assent on 26 March, 2015 and came into force on 1 October, 2015. The CRA 2015 significantly extends the ability of businesses and consumers to bring private enforcement cases in relation to breaches of competition law, by introducing a limited opt-out collective actions regime and it considerably extends the role and powers of the specialist Competition Appeals Tribunal.

 
27. Are mergers and acquisitions subject to merger control?

Mergers are regulated by the Competition and Markets Authority (CMA) under Part III of the Enterprise Act 2002. In certain narrow cases of public interest, the Secretary of State is also involved in the decision-making process.

The UK has a wide definition of merger. It includes not only obtaining legal control, but also de facto control and obtaining material influence. The acquisition of material influence through voting rights or by other means may be sufficient and has been found at shareholdings below 18%. Therefore, many minority investments and participations are to be assessed as if they were mergers in the regular sense, providing the jurisdictional thresholds below are met.

A transaction may be investigated by the CMA if the merger meets either the:

  • Share of supply test. This is met if the transaction creates or enhances a 25% share of supply or purchases in the UK or a substantial part of the UK.

  • Turnover test. This is met if the business being acquired has a UK turnover in excess of GB£70 million in the previous business year.

If the jurisdiction thresholds are not met, the authorities cannot intervene and examine it.

There is no obligation to notify a merger to the UK authorities even if these jurisdictional thresholds are met and even if it may have anti-competitive effects.

Following notification (or, if the merger has not been notified, the date it was made aware of it) the CMA has up to 40 working days to make its assessment. It can then either clear the merger or refer it for an in-depth "Phase 2" investigation by an independent panel. The CMA must refer a transaction for a Phase 2 investigation where it believes there will be a substantial lessening of competition (SLC).

The Phase 2 panel must decide, within 24 weeks (which can be extended by eight weeks), whether the merger would result in a SLC within any market in the UK, after which time it can either clear the transaction or prohibit it. Subject to some limited exceptions, any merger which qualifies for reference to a Phase 2 investigation is subject to a fee, where the CMA decides to examine it, irrespective of whether a reference is actually made.

Merger filing fees have increased significantly. For large mergers (where turnover of the target exceeds GB£120 million) the merger filing fee is now GB£160,000. Where turnover of the target is between GB£70million and GB£120million, the merger filing fee is GB£120,000. Where turnover is between GB£20million and GB£70million, the filing fee is GB£80,000. For small mergers, where turnover of the target is GB£20million or less, the filing fee is GB£40,000.

 

Intellectual property

28. Outline the main IP rights in your jurisdiction.

The UK Intellectual Property Office (IPO) website has detailed guidance regarding the grant, registration and protection of intellectual property, see www.gov.uk/government/organisations/intellectual-property-office.

Patents

Definition and legal requirements. Patent applicants in the UK are able to apply for the following types of patents:

  • UK wide patents are granted by the IPO.

  • A single application can be made to the European Patent Office (EPO) under the European Patent Convention, for patent protection in multiple European countries (including the UK). The application is assessed by the EPO for each relevant country and distinct national patents are granted for the relevant countries if the application to the EPO is successful.

  • A single application can be made to either the IPO or the EPO under the Patent Co-operation Treaty (PCT), for patent protection in multiple countries both within and outside of Europe (including the UK). The application is also assessed by each country, and distinct national patents are granted by the countries in which the application is successful.

There is currently no method to obtain a European patent with effect in every member state. However, it is expected that the European Unified Patent System is likely to be implemented in 2017 with a transitional period of at least seven years. Once in place, applicants from the UK will have the option to apply for a single European patent with unitary effect.

In respect of UK national patents, in order to be patentable, an invention must:

  • Be new.

  • Involve an inventive step.

  • Be capable of industrial application.

  • Not be specifically excluded by statute (for example, a discovery, mathematical method or rules for playing a game).

A patent holder can:

  • If the invention is a product, prevent the unlicensed manufacture, use, disposing of, offering to dispose of, keeping, importation or sale of the patented product.

  • If the invention is a process, prevent the unlicensed use of the process, or offer for use of the process.

  • If the invention is a process from which a product can be obtained directly, prevent the disposing of, offering to dispose of, using, keeping or importing of such a product.

  • Assign or license the patent to another party.

Enforcement and remedies. UK patents are generally enforced through the UK courts. European patents that extend to the UK can also be enforced through the UK courts. The main remedies the courts can grant are:

  • Permanent or interim interdicts (in Scotland) or injunctions (in England and Wales).

  • Delivery up.

  • Damages or an account of profits.

Criminal sanctions are also available (see www.gov.uk/government/publications/intellectual-property-offences/ ).

In the UK, section 70 of the Patents Act 1977 prevents patent-holders making unjustified threats of patent infringement proceedings. As a result, great care must be taken when drafting pre-litigation correspondence.

Length of protection. Subject to certain exceptions, protection in the UK, as elsewhere in the EEA, lasts for a maximum of 20 years provided that renewal fees are paid annually from the fourth anniversary of the filing date. The length of protection in territories outside of Europe can vary.

Trade marks

Definition and legal requirements. There are two relevant types of registered trade mark: UK registered trade marks (applicable only in the UK) and Community Trade Marks (applicable throughout Europe). To be registered as a trade mark, a mark must generally:

  • Be capable of graphical representation.

  • Be capable of distinguishing the goods or services of one undertaking from another.

In addition, there are various exceptions where trade mark applications will not be approved.

The rights holder can:

  • Enjoy the exclusive right to use the trade mark in the UK (UK registered trade mark)/within Europe (Community Trade Mark).

  • Prevent others in the course of trade from using a sign which:

    • is identical to the registered trade mark in relation to goods or services which are identical to those for which it is registered;

    • is the same (or similar to) the registered trade mark and used for the same (or similar) goods or services, where the use has caused or is likely to cause confusion; or

    • if the registered trade mark has a reputation in the UK, is identical or similar to the registered trade mark where such use takes unfair advantage of, or is detrimental to, the distinctive character and repute of the trade mark.

  • Assign or license the trade mark to other parties.

The UK also protects unregistered trade marks (including trading names, brands or get-up) through the common law of passing off. If a party has acquired goodwill in the UK in goods or services supplied under an unregistered trade mark, it can prevent third parties making a misrepresentation likely to lead the public to believe that its goods/services are those of the unregistered trade mark owner.

Protection. Applications for UK registered trade marks must be made to the UK Intellectual Property Office. Applications for Community Trade Marks are made through the European Office for Harmonisation in the Internal Market (OHIM). Unregistered trade mark rights arise automatically and need not be applied for.

Enforcement and remedies. UK registered trade marks, Community Trade Marks and unregistered trade marks with goodwill in the UK can be enforced in the UK courts. The Trade Marks Act 1994 and the Community Trade Mark Regulations 2006 set out civil remedies and criminal sanctions for infringement of UK registered trade marks and Community Trade Marks. These are similar to those for patents (see above, Patents). Similar civil remedies are available for passing off.

There is legislation which prevents trade mark owners making unjustified threats of trade mark infringement proceedings (section 21, Trade Marks Act).

Length of protection and renewability. Registered trade mark protection lasts indefinitely, subject to renewal every ten years and any challenges to its validity (for example, on grounds of non-use).

Unregistered trade mark protection lasts for as long as the goodwill does. It can last indefinitely.

Registered designs

Definition. There are two relevant types of registered design: UK registered designs (applicable only in the UK) and Community Registered Designs (applicable throughout Europe). Broadly, registered design protection protects the appearance of the whole or part of a product resulting from various physical features of the product or its ornamentation, including both 3D and 2D features.

To qualify for registration, a design must:

  • Be new.

  • Have individual character.

In addition, there are various exceptions where certain designs will not be granted protection.

The holder of a UK registered design can:

  • Enjoy the exclusive right in the UK to use the design and any design which does not produce on the informed user a different overall impression. The right holder has the exclusive right to make, offer, put on the market, import or export, use or stock any product in which the design has been applied or incorporated.

  • Assign or license the right to other parties.

The holder of a Community Registered Design has similar rights.

Registration. Applications for a UK registered design must be made to the UK Intellectual Property Office. Applications for a Community Registered Design must be made to OHIM.

Enforcement and remedies. UK registered designs and Community Registered Designs can be enforced in the UK courts. Various civil remedies and criminal sanctions are available under the Registered Designs Act 1949 (as amended) and the Community Design Regulations 2005. These are similar to those for patents (see above, Patents). There is legislation which prevents registered design owners making unjustified threats of registered design infringement proceedings (section 26, Registered Designs Act, 1949).

Length of protection and renewability. Protection for UK registered designs and community registered designs lasts for a maximum of 25 years subject to renewal fees every five years.

Unregistered designs

Definition and legal requirements. There are two main types of unregistered design: UK unregistered designs (applicable only in the UK) and Community Unregistered Design Right (CDR) (applicable throughout Europe). There is also a special type of unregistered design which applies to semiconductor chips (semiconductor topography right) which is less common. Broadly, CDR protection protects the appearance of the whole or part of a product resulting from various physical features of the product or its ornamentation.

A UK unregistered design protects the design of any aspect of shape or configuration of the whole or part of an article. Only 3D features are protected, so for example, a 2D pattern on a 3D object would not be protected.

For UK unregistered design protection, the design must:

  • Comprise the shape or configuration (whether internal or external) of the whole or part of an article.

  • Be original and not commonplace within a qualifying country (the UK, EU, Channel Islands, the Isle of Man, any UK colony or any country designated as qualifying for reciprocal protection).

  • Be recorded in a design document or be the subject of an article made to the design.

  • Be created by a qualifying person (a person or company/entity in the UK, EU, Channel Islands, the Isle of Man, any UK colony, or any country designated as qualifying for reciprocal protection).

The legal requirements for a CDR are broadly the same as for a community registered design (see above, Registered designs).

In addition, various exceptions apply where certain unregistered designs and CDRs will not be granted protection.

The holder of a UK unregistered design can:

  • Enjoy the exclusive right to reproduce the design for commercial purposes by making articles to that design or by making a design document recording the design for the purpose of enabling the articles to be made.

  • Prevent others from infringing his rights by copying the design or design document.

  • Assign or license the right to other parties.

The rights of a CDR holder are broadly similar.

Enforcement and remedies. UK registered designs and CDRs can be enforced in the UK courts. Various civil remedies and criminal sanctions are available under the Copyright Designs and Patents Act 1988 and the Community Design Regulations 2005. These are similar to those for patents (see above, Patents). There is legislation which prevents design right owners making unjustified threats of design right infringement proceedings (see above, Registered designs).

Length of protection. UK unregistered design protection lasts for either:

  • 15 years from the end of the calendar year when the design was first recorded in a design document or, if earlier, from when an article was first made to the design.

  • Ten years from the end of the calendar year when articles made to the design were first made available for sale or hire.

CDR protection lasts for three years from the date on which the design was first made available to the public within Europe.

Copyright

Definition and legal requirements. Copyright subsists in the following works, provided they are the author's own independent creation:

  • Literary (including software), dramatic, musical or artistic works.

  • Sound recordings, films or broadcasts.

  • The typographical arrangements of published editions.

The copyright holder has the exclusive right to do the following in the UK:

  • Copy the work.

  • Issue, rent or lend copies of the work to the public.

  • Perform, show or play the work in public.

  • Communicate the work to the public.

  • Make an adaptation of the work.

  • Do any of the above in relation to an adaptation.

The copyright holder has also the right to:

  • Be identified as the author or director of the work.

  • Object to derogatory treatment of the work.

  • Not have work falsely attributed to him.

  • Prevent others from infringing any of his rights.

  • Assign or license the rights to other parties.

Protection. Protection subsists automatically when the work is created. The rules on protection are set out in the Copyright, Designs and Patents Act 1988. There are certain exceptions to protection.

Enforcement and remedies. There are various civil remedies and criminal sanctions set out in the Copyright, Designs and Patents Act 1988. These are similar to those for patents (see above, Patents). There is an extra remedy of additional damages which is available for flagrant copyright infringement.

Length of protection and renewability. The length of protection depends on the work:

  • Literary, dramatic, musical and artistic works: 70 years from the end of the calendar year after the death of the creator of the work.

  • Computer generated literary, dramatic, musical or artistic works: 50 years from the end of the calendar year in which the work was made.

  • Films: 70 years from the end of the calendar year after the death of the last surviving director, author of the screenplay or composer of music specifically created for the film.

  • Sound recordings: 70 years from the end of the calendar year in which it is first published or played in public. If a sound recording has only been recorded (that is, it has not been published or played in public) then it will be protected for 50 years from the end of the calendar year in which the recording is made. If during those 50 years, the work is published or played in public, a new 70 year period of protection will commence.

  • Broadcasts: 50 years from the end of the calendar year of the first broadcast.

  • Published editions: 25 years from the end of the calendar year of the first publication.

Other

Other types of IP rights in the UK include:

  • Protection for geographic indicators of origin (for example, the Scotch Whisky Regulations 2009, which govern the production, labelling and presentation of Scotch Whisky).

  • Databases may be protected by copyright and/or a separate database right which offer protection against copying, extraction and re-utilisation of the database and/or the information within the database.

  • Plant varieties protection.

  • Confidential "know-how" is protected in the UK under the law relating to confidential information.

 

Marketing agreements

29. Are marketing agreements regulated?

Agency

The Commercial Agents (Council Directive) Regulations 1993 protect an agent who is paid to negotiate the sale or purchase of goods within the EU. The regulations are onerous for principals in relation to the agents' rights.

Distribution

There are no specific laws which govern the distribution of goods and/or services. However, general contract law and relevant legislation will apply to the agreements governing distribution arrangements. See Question 33 for information regarding considerations relevant to the supply of products. Certain regulations must also be considered, for example, parties should consider the application of the EU vertical agreements block exemption under Regulation (EU) 330/2010.

Franchising

There are no specific franchise laws in the UK. A franchise is treated in a similar way as a licence for intellectual property.

Parties should be aware that EU rules apply to agency, distribution and franchising in the UK, for example, (Regulation (EU) 330/2010 on the application of Article 101(3) of the TFEU to categories of vertical agreements and concerted practices (Vertical Restraints Block Exemption). These rules provide a safe harbour for certain types of arrangement, as well as applying an outright prohibition on some practices (such as export bans).

 

E-commerce

30. Are there any laws regulating e-commerce (such as electronic signatures and distance selling)?

The main laws regulating e-commerce include:

  • Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. This obliges suppliers to provide certain information to consumers in relation to contracts to buy goods and services concluded at a distance or away from the seller's premises. They also impose a cooling-off period giving consumers the right to cancel contracts.

  • Electronic Communications Act 2000. This provides that electronic signatures are admissible as evidence in relation to questions on authenticity of an electronic communication.

  • Electronic Signatures Regulations 2002. These regulate liability for providers of certificates relating to electronic signatures and establish a register of providers.

  • Consumer Protection (Distance Selling) Regulations 2000. This has been superseded by the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. However, they will continue to apply to contracts entered into prior to 13 June 2014.

  • Electronic Commerce (EC Directive) Regulations 2002. These determine which EU member states' laws apply in cross-border e-commerce trade. They also regulate the information to be provided by information society service providers and the liability of intermediaries for information transmitted, cached or hosted.

  • Privacy and Electronic Communications (EC Directive) Regulations 2003. This prevents businesses sending unsolicited e-mails to individual subscribers, unless:

    • They have given their consent to receiving them.

    • The goods or services are similar to those previously sold by the same trader.

    • Their contact details have been obtained as a consequence of selling the consumer goods and/or services.

  • Data Protection Act 1998. Any organisation in the UK that collects and processes the personal data of individuals (generally known as a "Data Controller") must comply with the provisions of the Data Protection Act 1998. Data Controllers are subject to strict obligations regarding how they collect and process personal data. For example, Data Controllers that collect the personal data of individuals via the internet, security systems, direct marketing tools, website cookies and international data transfer agreements must be aware of their obligations under the Data Protection Act 1998 when subsequently making use of such personal data.

  • Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011. This states that the use of cookies is only allowed if a user has been given clear and comprehensive information relating to the purpose and use of the information to be collected and requires the user to consent to this use. These regulations amend the Privacy and Electronic Communications (EC Directive) Regulations 2003, which regulate various forms of marketing (including e-mail marketing).

 

Advertising

31. Outline the regulation of advertising in your jurisdiction.

Advertising is regulated by a combination of legislation and a self-regulatory framework. The main enforcement body in the UK is the Advertising Standards Authority (ASA), which enforces rules for both broadcast and non-broadcast advertising.

The legislative framework includes:

  • Consumer Protection from Unfair Trading Regulations 2008 (SI/2008/1277). These implement Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive). They contain a general prohibition on traders acting in a way that treats consumers unfairly, and place obligations on traders not to mislead consumers or partake in aggressive commercial practices.

  • Communications Act 2003. This regulates telecommunication and broadcasting industries in the UK and gives enforcement powers to the Office for Communication (Ofcom).

  • Audiovisual Media Services Regulations 2009 (2009/2979). These regulations were introduced to implement the Audiovisual Media Services Directive. The regulations introduce a minimum standard for advertising and product placement provisions in programmes(whether broadcast through television or on-demand services).

  • Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) and the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134). These regulate online advertising by imposing certain information requirements that online traders must adhere to when advertising goods or services.

  • Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276). These implement Directive 2006/114/EC concerning misleading and comparative advertising (Misleading and Comparative Advertising Directive) and provide specific rules that advertisers must comply with in relation to comparative advertising.

The self regulatory framework comprises:

  • UK Code of non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code). The CAP Code is administered by the Committee of Advertising Practice (CAP) and provides a framework of rules that advertisers must comply with when advertising via non-broadcast media such as advertisements in publications and online advertisements.

  • Broadcast Advertising Code (BCAP Code). The BCAP Code applies to broadcast media such as radio and television.

Both codes are enforced by the ASA and are available at www.cap.org.uk.

 

Data protection

32. Are there specific statutory data protection laws? If not, are there laws providing equivalent protection?

Data protection is governed by the Data Protection Act 1998 (DPA).

Further regulation which may be relevant when dealing with personal data concerning living individuals includes:

  • Human Rights Act 1998.

  • Freedom of Information Act 2000 (FOIA).

  • Freedom of Information (Scotland) Act 2002 (FOISA).

  • Privacy and Electronic Communications (EC Directive) Regulations 2003 (Privacy Regulations) (as amended).

  • A developing common law of personal privacy.

It is expected that a new EU Data Protection Regulation will come into force soon.

The current DPA regulates the processing of personal data, which is data relating to a living individual who can be identified from that data (or that data in combination with other data held by a party). Fines of up to GB£500,000 can be imposed by the Information Commissioner on those breaching the DPA.

FOIA and FOISA give any person access to information held by public authorities (subject to satisfying a number of tests) and sets out the procedure to be followed.

The Privacy Regulations govern the use of personal data in commercial communications by fax, telephone and e-mail. They also regulate the use of location data and govern the use of cookies.

 

Product liability

33. How is product liability and product safety regulated?

The laws regulating product liability and product safety include the following:

  • Common law of tort in England and Wales (or delict in Scotland).

  • Contract law.

  • Statutes and secondary legislation, including:

  • General Product Safety Regulations 2005.

  • Sale and Supply of Goods Act 1994.

  • Consumer Protection Act 1987.

  • Sale of Goods Act 1979 (as amended).

  • Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts Regulations 1999.

  • Consumer Protection from Unfair Trading Regulations 2008.

  • Statutes and regulations imposing criminal penalties where goods are supplied in ways which do not conform to relevant standards (for example, the Business Protection from Misleading Marketing Regulations 2008, which prohibits misleading advertising to businesses).

Subject to UK parliamentary approval, it is expected that the Consumer Rights Bill will come into force on 1 October 2015. The Bills represent a significant overhaul of UK consumer law with the aim of making it clearer and easier to understand for consumers and businesses alike.

 

Main business organisations

Department of Business Innovation and Skills (BIS)

W www.gov.uk/government/organisations/department-for-business-innovation-skills

Main activities. BIS invests in skills and education to promote trade, boost innovation and help people to start and grow a business. It works to enable growth and covers almost every aspect of the economy, from higher education and skills to business and trade, from consumer issues to regulation.

Companies House

W www.companieshouse.gov.uk/

Main activities. The main functions of Companies House are to:

  • Incorporate and dissolve limited companies.

  • Examine and store company information delivered under the Companies Act and related legislation.

  • Make this information available to the public.

Financial Conduct Authority (FCA)

W www.fca.org.uk/

Main activities. The FCA is an independent body that regulates the financial services industry in the UK. The regime changed in April 2013 to a two-tier system with the FCA working in partnership with the Prudential Regulation Authority www.bankofengland.co.uk/PRA/Pages/default.aspx.

HM Revenue and Customs (HMRC)

W www.hmrc.gov.uk/businesses/index.shtml

Main activities. HMRC collects and administers direct and indirect taxes and benefits. It also enforces and administers border controls.

Revenue Scotland

W www.revenue.scot/

Main activities. Revenue Scotland is responsible for the administration of Scotland’s devolved taxes.

UK Border Agency (UKBA)

W www.ukba.homeoffice.gov.uk/

Main activities. The UKBA administers immigration and visas for entry to the UK on behalf of the Home Office.

Land Registry

W www.landregistry.gov.uk/

Main activities. The Land Registry registers the ownership of land and property in England and Wales. They keep and maintain the Land Register, which is the property register for England and Wales. There are separate Registers for Scotland and Northern Ireland.

Competition and Markets Authority (CMA)

W www.gov.uk/government/organisations/competition-and-markets-authority

Main activities. The CMA is the main competition regulator in the UK and is responsible for investigating markets, mergers and breaches of competition law.



Online resources

W www.legislation.gov.uk/

Description. This website is managed by The National Archives on behalf of HM Government. The original (as enacted) and revised versions of legislation for the UK on this website are published by and under the authority of the Controller of HMSO and the Queen's Printer for Scotland. The revised versions of legislation held on this website are maintained by the legislation editorial team at The National Archive.



Contributor profiles

Gwen Souter, Head of Tax

Maclay Murray & Spens LLP (Lex Mundi Member Firm)

T +44 (0)330 222 1965
F +44 141 248 5916
E gwen.souter@mms.co.uk
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Professional qualifications. Qualified accountant

Areas of practice. Tax.

Recent transactions

  • Advising on the tax aspects of a reconstruction designed to return banking operations to the UK.

  • Providing tax advice on transactional and structuring matters to a large pension fund and its manager.

  • Assisting high net worth individuals with business succession planning, whether retaining family ownership or transferring to employees.

  • Acting for parties on several UK and cross-border corporate deals.

  • Advising on the tax implications of carrying on business in the UK.

Kenneth Shand, Partner, Corporate

Maclay Murray & Spens LLP (Lex Mundi Member Firm)

T +44 (0)330 222 1954
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Professional qualifications. Scotland, Solicitor, 1984

Areas of practice. Corporate; M&A.

Recent transactions

  • Aberdeen Asset Management. US$500m capital notes issue.

  • Ezeflow. Acquisition of Munro & Miller business.

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  • Weir Group. Sale of LGE Process.

  • Baxters Food Group. Acquisition of Mizkan Europe.

  • MB Aerospace. Secondary buyout.

  • Scottish Equity Partners. MBO of Tryzens.

Laura Morrison, Senior Solicitor, Employment and Pensions

Maclay Murray & Spens LLP (Lex Mundi Member Firm)

T +44 (0)330 222 1899
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E laura.morrison@mms.co.uk
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Professional qualifications. Solicitor, Scotland

Areas of practice. Employment; immigration.

Recent transactions

  • Advising a number of clients on successful applications for sponsorship licences in tier 2 (general) and intra-company transfer categories.

  • Assisting an individual client with a successful application for indefinite leave to remain in tier 1 (general) category.

  • Assisting a corporate client with a successful application for a tier 2 (intra-company transfer) visa for a Chinese colleague.

  • Advising a corporate client in relation to a successful application for a business visitor visa for a senior executive based in Canada.

  • Advising a number of clients on prevention of illegal working and the necessary pre-employment checks.

Ross Nicol, Partner, Intellectual Property and Technology Team

Maclay Murray & Spens LLP (Lex Mundi Member Firm)

T +44 (0)330 222 1915
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E ross.nicol@mms.co.uk
W www.mms.co.uk

Professional qualifications. Scotland, Solicitor

Areas of practice. Intellectual property; commercial contracts; information technology and data protection.

Recent transactions

  • Advising Ennismore on the intellectual property aspects of its acquisition of Gleneagles Hotel from Diageo.

  • Advising Aberdeen Asset Management PLC on the intellectual property and data aspects of its acquisition of Scottish Widows Investment Partnership from Lloyds Banking Group.

  • Advising Optos PLC on the global distribution arrangements in respect of its medical devices.

  • Advising the Restaurant Group PLC on franchise agreements relating to the operation of sites at Heathrow and Gatwick airports.

  • Advising Aggreko PLC on various commercial arrangements.

Michael Dean, Partner, EU, Competition and Regulatory

Maclay Murray & Spens LLP (Lex Mundi Member Firm)

T +44 (0)330 222 1713
F +44 141 248 5819
E michael.dean@mms.co.uk
W www.mms.co.uk

Professional qualifications. Scotland, Solicitor, 1984

Areas of practice. Competition; regulatory; state aid; procurement.

Recent transactions

  • Leading and co-ordinating the team's work representing Stagecoach in the local bus market investigation and two merger investigations by the Competition Commission.

  • Successfully appealing a merger decision by the Competition Commission in the Competition Appeal Tribunal on grounds of rationality.

  • Leading and co-ordinating the defence of BPI at simultaneous inspections by the Office of Fair Trading and European Commission.

  • Representing AB Nynas Petroleum in European Commission proceedings in two cartel proceedings including appearing at European Commission hearings.

  • Acting for AB Nynas Petroleum in its subsequent appeals to the Court of First Instance (now the General Court) against the penalties imposed of the Commission’s cartel decisions.

  • Assisting various clients to put in place robust and thorough competition and bribery compliance programmes, with effective staff training and sign-off; including the delivery of staff training workshops across the UK, in Norway, Spain, Belgium, Denmark, USA and Canada.

  • Advising Oil & Gas UK in relation to the competition law compliance of a number of ongoing industry-led projects aimed at rejuvenating oil and gas production in the North Sea.


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