Some Issues relating to Brexit 10 September 2016 Reid Feldman Kramer Levin Naftalis & Frankel LLP telephone: + (33) 1 44 09 46 03 / +1 (212) 715-3777 rfeldman@kramerlevin.com
Topics covered 1. Some key terms and concepts 2. Contract issues 3. Other issues (a) Values: What kind of Europe do we want? (b) Priority pending proposals (c) Defense and foreign policy 1
1. Some key terms and concepts Some terms of general applicability Treaties, regulations, directives and Actors Statuses, programs and concepts other legislation CEU = Council of the EU FOE = Freedom of establishment TEU = Treaty on European Union (Maastricht 1992, modified by treaties of CJEU = Court of Justice of the FOS = Freedom of services Amsterdam, Nice and Lisbon) European Union FOM = Freedom of movement COE = Council of Europe TFEU = Treaty on the Functioning of the EC = European Commission EU EP = European Parliament Brussels I Regulation EC = European Council Rome I Regulation (tracks Treaty of ECHR = European Court of Human Rome) Rights EEA = European Economic Area EFTA = European Free Trade Association EU = European Union MS = Member State TC = third country and many more . . . 2
Some regime-specific terms and concepts (1/2) A sampling of relevant terms illustrating the proposition that Brexit will be complex: financial services / securities law / insurance EBA = European Banking Authority Actors ECB = European Central Bank EIB = European Investment Bank EIOPA = European Insurance and Occupational Pensions Authority ESMA = European Securities and Markets Authority Statuses, programs AIF = Alternative Investment Fund AIFM = AIF Manager and concepts CMU = Capital Markets Union DGS = Deposit Guarantee Scheme PRIIPs = Packaged retail and insurance based investment products SEPA = Single European Payment Area SRM = Single Resolution Mechanism SSM = Single Supervision Mechanism UCITS = Undertaking for the Collective Investment in Transferable Securities Treaties, AIFMD = AIFM Directive BRRD = Bank Recovery and Resolution Directive regulations, CRDIV = Capital Requirements Directive IV directives and other DGSD = Deposit Guarantee Schemes Directive legislation EMIR = European Market Infrastructure Regulation IMB = Insurance Mediation Directive MIFID = Markets in Financial Instruments Directive MIFID II = Markets in Financial Instruments Directive II PD = Prospective Directive PSD = Payment Services Directive Solvency II = Directive 2009/138 of 25 November 2009 as modified (and associated legislation) SR = Securitisation Regulation (proposed) Regulatory scheme home country control with FOS & FOE passporting portfolio transfer rules branches of TC financial services providers or insurers may be authorized by MS regulators, but no passporting TC actors might be able to access some sectors of the market, if regulation deemed equivalent 3
Some regime-specific terms and concepts (2/2) A sampling of relevant terms illustrating the proposition that Brexit will be complex: energy / environmental transportation telecoms intellectual property EPO = European Patent Actors ACER = Agency for the Cooperation of EASA = European Aviation Safety BEREC = Body of Energy Regulators Agency European Regulators for Office Electronic ECAA = European Common Communications EUIPO = European Union Aviation Area Intellectual Property Office ESA = European Space EMSA = European Maritime Agency UPC = Unified Patent Court Safety Agency IU = Innovation Union Statuses, CEF = Connecting Europe Facility RIP = Rail Infrastructure Package CEF = Connecting Europe ENTSO-E = European Network of Facility (proposed) programs Transmission System Operators for SAFA = Single European Sky and Electricity DSM = Digital Single concepts ENTSO-G = European Network of SER = Single European Railway Market Transmission System Operators for Gas Area ETS = Emissions Trading System IEM = Internal Energy Market TERFN = Trans European Rail IPPC = Integrated Pollution Prevention Freight Network and Control Regime OFTO = Offshore Transmission Owners DEIPR = Directive on Treaties, ELD = Environmental Liability Directive ASOR = Agreement on the AMSD = Audiovisual and IED = Industrial Emissions Directive International Carriage of Media Service Directive Intellectual Property Rights regulations, LCPD = Large Combustion Plan Directive Passengers by Road directives RED = Renewable Energy Directive ROIR = Roaming and EUTMR = EU Trademark and other REMIT = Regulation on Energy Market ECAA = European Common Open Internet Regulation Regulation legislation Integrity and Transparency Aviation Area SCPOP = Stockholm convention on UPCA = UPC Agreement Persistent Organic Pollutants Third Energy Package: unbundling (including OFTOs) 4
2. Contract I ssues See discussion in program materials posted on the ABA website at http://www.americanbar.org/content/dam/aba/events/business_law/2016/09/annual/materials /brexit-201609.pdf dealing with: long-term supply contracts concession agreements M&A deals financing agreements contracts raising regulatory issues 5
3. Some Other I ssues Potentially I mpacted by Brexit (a) Values: What kind of Europe do we want? See attached Charter of Fundamental Rights of the European Union – in particular, highlighted terms (b) Priority pending proposals See attached selection from Commission Work Program 2016 – these represent only a small selection of work in progress (c) Defense and foreign policy See attached map of threats, focusing on Russia – but these are not the only ones 6
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Questions? 17
Reid Feldman Partner Kramer Levin Naftalis & Frankel LLP Tel + (33-1) 44 09 06 03 / +1 (212) 715-3777 rfeldman@kramerlevin.com New York Paris Silicon Valley www.kramerlevin.com PARIS NEW YORK SILICON VALLEY 47 AVENUE HOCHE 1177 AVENUE OF THE AMERICAS 990 MARSH ROAD 75008 PARIS NEW YORK MENLO PARK FRANCE NY 10036-2714 CA 94025-1949 T: +33 1 44 09 46 00 T: +1 212.715.9100 T: +1 650.752.1700 F: +33 1 44 09 46 01 F: +1 212.715.8000 F: +1 650.752.1800
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