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UK LEGAL COMMENT


Anti-Money Laundering


Although the UK’s Money Laundering Regulations implement EU Directives, the Government has given no indication that it intends to make any changes to the current regime once the transition period ends. In fact, there are very good reasons for the UK to keep its money laundering rules broadly harmonised with those in the EU and it is expected to do so. The EU’s Fifth Anti-Money Laundering Directive (5AMLD) was implemented into UK law in January 2020, despite the UK’s exit from the EU. The Sixth Money Laundering Directive (6MLD) must be implemented by member states by December 2020, however the UK does not intend to transpose it into UK law, on the basis that in many cases UK law already includes similar or broader provisions. One notable element of 6MLD which will not find its


way into UK law is the proposal to extend liability for money laundering offences to companies and company bosses, by creating a “failure to prevent” offence.


Data transfer


On 1 January 2021, the UK will become a “third country” for the purposes of GDPR. Data can continue to flow from individual data subjects to a UK business. However, in order for personal data to continue to flow freely from data controllers in EU jurisdictions to businesses in the UK, the European Commission will need to issue an “adequacy decision”. If it does not make that decision by the end of the year, businesses will need to put in place alternative safeguards, such as Standard Contractual Clauses (SCCs) in their agreements with EU companies, to ensure the continued flow of data is lawful. As a first step, businesses would be well advised to


review what transfers of personal data they receive from the EU. With time running out for the EU to issue an “adequacy decision”, it would be prudent to being considering and implementing SCCs now where needed.


Employment issues


EU law currently confers rights which allow EEA nationals to live and work in the UK without having their entitlement to work in the UK determined by the points- based system and without obtaining a visa. Other than Irish nationals (who will continue to have the same rights they do now), employees from EEA jurisdictions will need to be treated in the same way as non-EEA nationals from 1 January. So, for example, a UK casino wanting to employ a croupier from European country will need to sponsor the potential employee. EEA citizens who are currently living and working in the UK have until 30 June 2021 to apply for “settled status” if needed. Many employment rights enjoyed by UK workers derive


from EU law, such as holiday pay, working time, redundancy provisions or compensation caps on discrimination claims. The UK Government does not seem to have plans to alter any of these provisions immediately following Brexit. Should it decide to make any changes in the future, these are more likely to be employer-friendly, rather than increasing worker rights.


Free trade


Time is quickly running out for the UK to reach a free trade agreement with the EU. UK businesses which export goods to / import goods them from EU jurisdictions, for example gaming machines or casino equipment, will need to make customs declarations from 1 January. What tariffs and duties will be applied will depend on whether an agreement is reached with the EU and, if it is, the details of that. Trade with non-EU jurisdictions will also be affected,


where the UK currently enjoys the benefit of EU trade agreements. Agreements have been reached with some countries (such as Switzerland, Israel, South Korea and Japan) but discussions with others are ongoing. Trade with countries with which an agreement has not been reached will usually be on WTO terms. Business that import or export goods should check which countries they trade with and establish how this will be affected next year. In some cases, contracts may need to be amended.


Gibraltar


Remote operators based in Gibraltar (where 95% of the population voted to stay in the EU) have had particular concerns about the movement of workers from Spain. An agreement has been reached which will allow Spanish workers to continue to enjoy the same employment rights when they work in Gibraltar and workers will be able to register with the Gibraltan authorities to receive a letter certifying their employment status. Talks continue between the Spanish and UK Governments and, unless a solution is found, there may well be issues with the movement of people and goods across the border from 1 January.


Next steps


If they have not already done so, businesses in the gambling industry should make an assessment now of the extent to which they employ, trade with, provide services to or exchange data with companies and individuals in the EU. The key questions to address by 31 December are whether the relevant activities remain legal, and what changes need to be made to contracts and practices.


Melanie is a gambling regulatory lawyer with 13 years’ experience in the sector. Melanie advises on all aspects of gambling law including licence applications, compliance, advertising, licence reviews and changes of control. She has acted for a wide range of gambling operators including major online and land-based bookmakers and casinos, B2B game and software suppliers and start-ups. She also frequently advises operators of raffles, prize competitions, free draws and social gaming products. Melanie has a particular interest in the use of


new technology for gambling products and novel product ideas.


DECEMBER 2020 25


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