BFI: Withdrawal Agreement plus deal guidance

Answering questions from the screen sectors.

Last updated: 23 December 2019

Brexit will change the way UK businesses interact with the EU, including those working in the screen sectors. This page sets out how our working relationship may be expected to change after the UK’s exit from the EU in a deal scenario. It draws upon terms set out in the October 2019 Withdrawal Agreement negotiated between the EU and the UK government.

This Withdrawal Agreement must be ratified by the UK Parliament and the European Parliament before 31 January to pass into effect. This process is currently in train.

If the Withdrawal Agreement is not ratified by both Parliaments by this point, the UK will leave without a deal. More information on what a no deal scenario will mean for the screen industries can be found here.

The BFI will continue to update this page as further detail emerges. We continue to work very closely with the Department for Digital, Culture, Media and Sport and across Government as well as with industry and European partners. Our aim is to help secure the best possible outcome for the screen industries in both deal and no deal scenarios, enabling us to sustain the closest possible working relationship with Europe in the future.

If you have additional queries or concerns, please email brexitadvice@bfi.org.uk

When does the UK actually leave the EU?

The UK is currently set to leave the EU on 31 January 2020, after the EU agreed to extend Article 50 from its previous cut-off date of 31 October 2019.

What does Brexit mean for the Creative Europe programme?

This question can be split into two: what Brexit means for the UK’s participation in the current Creative Europe programme, which runs until 2020, and what it means for its participation in the longer term.

Under the terms of the Withdrawal Agreement, the UK would be able to participate in the current Creative Europe programme until it ends in December 2020. UK projects would be able to apply for funding up until this point, with successful applications receiving funding as normal, even where their funded activity is set to take place after December 2020.

What will happen to freedom of movement?

The UK Government has previously been clear that it intends for freedom of movement to end after the UK leaves the EU. The Withdrawal Agreement would allow for freedom of movement to continue until the end of the transition period in December 2020. UK and EEA nationals would be able to travel as normal between the UK and the EU up until this point. Government has stated its intention to introduce a new points-based immigration after this point. More details are to follow.

The previous government set out plans to introduce a new immigration system from January 2021 in an Immigration White Paper available to read here. The current government has stated its new immigration system will feature ‘improvements’ to these proposals.

What will happen to EU citizens living in the UK?

If its terms are accepted, the Withdrawal Agreement will guarantee the rights of EU citizens resident in the UK by the end of the transition period. EU citizens that have lived in the UK for five years or more to apply for ‘settled status’, allowing them to stay here permanently. Anyone that has not been in the UK for the requisite five years may apply for pre-settled status, allowing them to remain in the UK until they have reached the five years required to apply for settled status. The deadline for applications for either settled or pre-settled status in a deal scenario is 30 June 2021.

Further detail on how to apply for the EU settlement scheme is available here.

Government has set up a settlement scheme helpline for businesses at 0300 123 7379.

And what about UK citizens currently living in the EU?

The EU has agreed to safeguard the rights of UK citizens arriving in the EU by the end of the transition period. Process on exercising these rights varies territory by territory. More information here.

Government has also set up a helpline for businesses on EU citizens’ regulation at 0300 123 2253.

What is the plan for a new immigration system?

The Government has stated that it will introduce a new points-based immigration system from January 2021 and has commissioned the Migration Advisory Committee to review Australia’s current points-based immigration system as part of this. More detail is to follow. It is expected that this system will no longer use EEA status to distinguish applicants.

Under the previous Prime Minister, the Government published an ‘Immigration White Paper’ in December 2018, setting out its plans for a reformed immigration system. This system would treat EEA citizens as ‘non-visa nationals’. The current Government has said that its own plans will include ‘improvements’ to this proposed system. The previous Government’s initial Immigration White Paper can be read here.

Will Brexit affect UK and European tax incentives?

The UK’s Creative Sector Tax Reliefs will not be affected by Brexit – this includes those available for film, high-end TV, animation programmes, children’s television and video games. In the BFI’s recent Screen Business report (2018), the previous Chancellor restated Government’s commitment “to supporting [the UK’s] highly-skilled and innovative creative industries through creative sector tax reliefs”. Content will still qualify for the applicable Creative Sector Tax Relief if it passes the UK’s relevant cultural test. Creative sector cultural tests will also continue to recognise EEA content and personnel regardless of whether the UK secures a deal with the EU.

Some minor changes will be required if the UK is to continue to qualify for incentives in some EU Member States after it has left the EU. UK Government, in conjunction with the BFI, is working to ensure that wherever possible Member States undertake the work needed to ensure UK content and personnel can still qualify.

These changes will have to be made in both a ‘deal’ and ‘no deal’ scenario. Under the Withdrawal Agreement, UK personnel would have EEA status – and thus will be able to qualify for other Member States’ cultural tests – until the end of the transition period. In the event of no deal, UK personnel will have EEA status until the exit date.

However, amendments will be required for UK content and personnel to continue to qualify where they are able to now in the longer term.

The BFI continues to be able to issue European Certificates of Nationality.

Are any changes expected to state aid rules?

The state aid regime helps regulate how public authorities provide advantages to organisations that could potentially distort competition. This ensures a level playing field for businesses operating across the UK and influences their level of competitiveness relative to international counterparts too. Advantages can be considered to be anything which an organisation could not get on the open market, such as grants, loans and tax incentives. It is an important consideration for the screen sectors, as state aid rules govern how public authorities might choose to support culture.

In either deal scenario, no material changes are expected to the UK’s state aid regime before the end of the transition period in December 2020. The Political Declaration sets out an intention to ‘ensure open and fair competition’ by upholding the common high standards for state aid applicable in the Union and the United Kingdom at the end of the transition period, and to maintain a robust framework thereafter. This is subject to further negotiation should the Withdrawal Agreement pass through UK Parliament.

Will the UK still be able to co-produce with EU partners?

All co-production agreements including the bi-lateral co-production treaties and the European Convention on Cinematographic Co-Production signed by the UK will remain in place after Brexit. The European Convention on Cinematographic Co-Production is governed by the Council of Europe, not the European Union, and the UK will continue to be a party to the Convention. In addition, on 7 February 2019 the UK Government officially signed the revised Convention which confers added flexibility to UK producers and their international partners whose countries are signatories. This demonstrates the UK’s determination in working with Europe and other international territories. Following the signing, is undergoing the full legislative process to be ratified and brought into force.

The UK’s bi-lateral treaties with Australia, Brazil, Canada, China, France, India, Israel, Jamaica, Morocco, New Zealand, Occupied Palestinian Territories and South Africa form part of UK legislation and therefore are not affected by Brexit.

Will a new trade agreement with the EU cover the screen sectors?

The Political Declaration accompanying the provisional Withdrawal Agreement agreed between the European Commission and the UK Government sets out the desired framework for the future relationship between the EU and the UK. It states the broad intentions for negotiation on numerous areas of importance for the screen sectors  – including participation in EU programmes like Creative Europe, intellectual property, and movement of people.

If audiovisual services are excluded  – as they have been in previous EU trade agreements  –  this will primarily affect broadcasters based in the UK which are broadcasting to EU Member States, since there will be no possibility of retaining the country of origin principle as provided for by the EU’s Audiovisual Services Media Directive (AVMSD). In this scenario, UK-based broadcasters may need a new licence. The Government has provided technical advice to broadcasters and video on demand providers, in the event of no deal, which can be found here.

Will UK films and TV programmes still count as “European works”?

In all Brexit scenarios, works originating from the UK will still be considered European works for the quotas set out in the European Union Audiovisual Media Services Directive (AVMSD). This has been confirmed by both the UK Government and the European Commission. This is because the AVMSD rules concerning the definition of European works state that a work can qualify if the work originates in a European third State party to the European Convention on Transfrontier Television (ECTT) of the Council of Europe. The UK is party to the ECTT and will continue to be a party to it once the UK leaves the EU. A note with further information can be found here.

The DCMS has consulted on the implementation in the UK of the revised AVMSD which was agreed by the EU in 2018. It includes a 30% quota for European works on VoD services. Under the Withdrawal Agreement, the provisions of this Directive would be transposed into UK law during the transition period.

Will Brexit affect laws on intellectual property?

Under the terms of the Withdrawal Agreement, the UK will remain subject to the same rules and regulations on intellectual property during the transition period, with future alignment subject to negotiation as part of the future relationship. This means IP laws will continue to function as now throughout this period.

The UK and other EU Member States are party to the main international treaties on copyright and related rights. These rules help underpin copyright legislation in all Member States of the EU and do not depend on the UK’s membership of the EU. The Political Declaration sets out an intention to build upon these agreements as part of any future trade agreement.

There is also a body of EU law on copyright and related rights that goes beyond the provisions of the international treaties, including several cross-border copyright mechanisms. These mechanisms are unique to the EU and provide reciprocal protections and benefits between EU Member States. The most recent addition to this body of EU law is the Copyright Directive which entered into force on 7 June 2019. Member States have 24 months to transpose this Directive into domestic legislation. If the Withdrawal Agreement is ratified and the transition period extended (for which the Withdrawal Agreement allows), then the UK will be required to implement this Directive.

Government has set up a helpline for businesses on intellectual property at 0300 300 2000.

What about the temporary movement of goods, such as filming equipment?

Under the terms of the Withdrawal Agreement, movement of goods would continue as normal throughout the transition period. Beyond this, the terms of movement would be subject to negotiation with the EU. The current Political Declaration on the future relationship between the UK and the EU recognises the importance of temporary movement of objects and equipment for ongoing cultural cooperation. It sets out plans to develop the smoothest possible arrangement for the movement of goods between the two, while recognising the importance of checks after the UK leaves the single market. For example, the EU’s Economic Partnership Agreement with Japan, which entered into force in February 2019, makes special provision for the temporary movement of cinematographic equipment.

Government has set up a helpline for businesses regarding goods crossing the UK/EU border at 0300 3301 331.

How would exiting with a deal impact our ability to work with cultural partners in the EU?

Whilst the UK is due to leave the EU, we are not leaving Europe, and  –  recognising the UK and EU’s common heritage  –  the UK still wishes to play an active role at the heart of European culture. In the Political Declaration accompanying the draft Withdrawal Agreement between the European Commission and the UK Government, both parties set out the desire for collaboration on cultural issues within the future partnership. The UK has a long history of collaborating with European partners through multilateral and bilateral initiatives across education, civil society, sport and creative and cultural industries, and a positive future relationship that reflects our shared values and history, and that will support the growth of culture, arts, sports and creative industries in the UK and the EU is to both parties’ mutual benefit.

An agreement could look at a number of key areas of mutual benefit, including:

  • potential continued participation in EU cultural programmes where mutually beneficial;
  • temporary movement of cultural and sporting goods to support tours, events and production, in accordance with wider proposals on goods;
  • protection of cultural property by supporting the return of cultural objects where these have been unlawfully removed; and
  • a statement of continued cooperation with EU cultural events, groups and fora where there are shared objectives and values.

An agreement could also point to the importance of mobility for cultural professionals in order to facilitate ongoing cooperation.

Should the UK be considering rejoining Eurimages?

The BFI committed to look at rejoining Eurimages as part of its BFI2022 strategy. This review was also a key recommendation of the BFI’s Independent Film Commission. The BFI has since met the Eurimages team to discuss the programme further.

Eurimages has undertaken an external evaluation to inform a review of the goals, programme implementation, governance and decision-making processes of the organisation. The outcome of the review is available to read here. Proposals for changes to Eurimages in response to this review have been developed, with the Board of Management voting on whether to accept them in June 2020. With the programme subject to potential change, the BFI believes the UK should wait until this review is completed before investigating membership further.

Additionally, industry has made it clear that participation in Creative Europe remains its priority in Brexit negotiations. The BFI is focusing its efforts to promote the interests of the screen sectors on continued membership of the Creative Europe programme.

Will the UK continue to be represented as part of the European Film Agency Directors (EFADs) forum?

Definitely. The BFI is one of the founder members of EFAD, which brings together the directors of film agencies in 34 countries in Europe (EU, Iceland, North Macedonia, Norway, Serbia and Switzerland). EFAD members are responsible for national funding for the audiovisual sector and for advising their Government on all aspects of audiovisual policy. In total, EFAD members and their governments fund around three billion euros every year through subsidies and tax reliefs to help foster the creation, production, promotion, distribution and exhibition of European audiovisual works including film. As such, EFAD has an extremely strong voice in helping to shape European audiovisual policy.

Will the UK continue to be able to access the wealth of facts and statistics produced by the European Audio-Visual Observatory?

Absolutely. Like the European Convention on Cinematographic Co-production, the European Audiovisual Observatory (EAO) is governed by the Council of Europe, not the European Union, and the UK will remain a member of the Council of Europe. The UK is set to hold the Presidency of the European Audiovisual Observatory in 2021.

More information on the EAO can be found here.

What does Brexit mean for data transfers?

Under the terms of the Withdrawal Agreement, data transfers will be able to continue as normal during the transition period, with further arrangements to ensure that data transfers remain possible in the future comprising one element of negotiations on the future UK-EU relationship.

Government has set up a helpline for businesses on data transfers at 0303 123 1113.

This Q&A contains general information. Any legal information is not advice and should not be treated as such. Any legal information in this Q&A is provided without any representations or warranties, express or implied, in particular we do not warrant that any information is true, accurate, complete, current or non-misleading. No lawyer client relationship shall be created through the use of this Q&A. You must not rely on any information contained in this Q&A. If you have any questions about any legal or finance matter contained in this Q&A, you should consult your own lawyer or finance professional. Nothing in this disclaimer excludes or limits liability for death or personal injury, for fraud or fraudulent misrepresentation or in any way not permitted under applicable law.

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