vLex European Union

This Newsletter of the Competition and Distribution team of BCLP's Paris office features some of the key developments of the last quarter. In this newsletter: ..To enable national authorities to better apprehend killer acquisitions, the European Commission (the "Commission") announces the “return” of Article 22 of the European Merger Regulation; ..As part of the review of the Vertical Block Exemption Regulation, the Commission publishes its roadmap and reveals the first reform options envisaged at this stage; ..Finally, the French Government has acknowledged, before the European Court of Human Rights (the "ECHR"), via a unilateral declaration - which is a rare occurrence - that the F (See Article)

As part of the EU’s strategy on climate change following the Paris Agreement of 2015, a number of EU regulations have been enacted in the past 12 months. From the fund management industry’s point of view, the two most important are the “Sustainable Finance Disclosure Regulation” and the “Taxonomy Regulation.” The Taxonomy Regulation seeks to establish a classification system in relation to environmental objectives to provide more information and greater transparency to investors in relation to sustainable investments. One aim is to counter so called “greenwashing,” where fund products are marketed with environmental aims, but do not deliver on those promises. Although enacted earlier this (See Article)

At the end of October, the European Chemicals Agency (ECHA) launched the SCIP database. When populated, the database will ensure that information on articles in the EU that contain substances of very high concern (SVHCs) is widely available. (See Article)

A company or group's financial distress causes significant turmoil for its owners, directors, managers, employees and often its suppliers and other creditors. For directors in particular, there are significant responsibilities and potential personal liabilities associated with the management of a company where its business is in financial distress. In this White Paper,we provide an overview of the relevant statutory and fiduciary duties of directors where a company is within the "zone of insolvency" in certain Western European jurisdictions and certain measures that the applicable governments have introduced as a result of COVID-19. We also highlight certain potential personal liabilities for (See Article)

On 12 November 2020, the European Commission’s Sub-Working Group on Borderline Products published a technical document concerning product claims related to leave-on hydro alcoholic hand gels within the context of COVID-19 pandemic. (See Article)

SEP licensing in supply chains: ECJ gets opportunity for a major trend-setting decision - In a decision of November 26, 2020 in a patent infringement case of Nokia Technologies Oy against Daimler AG, the Düsseldorf Regional Court (file number 4c O 17/19) referred several questions to the European Court of Justice (ECJ) regarding the licensing of standard essential patents (SEPs) within multi-level supply chains. The Düsseldorf Regional Court suspended the infringement action until the decision of the ECJ. (See Article)

Buyer Beware: UK Foreign Direct Investment Rules Now Much Tougher - The UK will see a dramatic strengthening of its protections against foreign direct investment under proposed rules announced by the government on 11 November 2020. (See Article)

As many organizations continue to struggle with the fallout from the July 2020 Schrems II decision from the European Court of Justice (“CJEU”), in November, the European Data Protection Board (“EDPB”) published two pieces of interrelated and eagerly-anticipated guidance regarding the export of personal data from the European Economic Area (“EEA”) to countries that have not been deemed to provide adequate protection for personal data and the rights and freedoms of data subjects under the GDPR. The guidance is subject to public consultation through December 21, 2020. (See Article)

On 19 November 2020, the European Court of Justice (“ECJ”) ruled on the French ban of cannabidiol (“CBD”) extracted from whole hemp plants in a case relating to the marketing and distribution of hemp oil containing CBD (case C 663/18)[i]. The legality of the ban and of other national restrictions on CBD and CBD products depend on whether such restrictions are adequate and proportionate to the effects of CBD on public health. (See Article)

The financial sector is greatly dependent on information and communication technologies (ICT). The importance of ensuring remote access to financial services increased to an even greater extent during the COVID-19 pandemic, with a 72 percent increase in the use of financial applications in Europe. Such reliance on ICT is not left unnoticed, and since the pandemic began, cyberattacks on financial institutions have risen by 38 percent,2 and national regulators, being occupied elsewhere, struggle to effectively address digital incidents and threats so financial entities are able to withstand potential ICT disruptions. (See Article)

On November 30, 2020, Intercontinental Exchange, Inc. (ICE) announced that the ICE Benchmark Administration Limited (IBA), a wholly-owned subsidiary of ICE and the administrator of LIBOR, will consult in early December 2020 on its intention to (i) cease the publication of the one-week and two-month USD LIBOR after December 31, 2021, and (ii) cease the publication of all other tenors of USD LIBOR after June 30, 2023. This follows the announcement on November 18, 2020, that the IBA would consult on its intention to cease the publication of all tenors of GBP, EUR, CHF and JPY LIBOR after December 31, 2021. (See Article)

One of the methods US and EU companies rely on most frequently for the transfer of personal data from the EU to the US are standard contractual clauses. For the method to be acceptable as a valid basis for transfer of personal information, one critical step is for companies to use the version of the clauses as approved by the EU Commission. This has causes some confusion and concern, as the clauses predate GDPR and thus do not include provisions related to that 2018 law... (See Article)

The Intercontinental Exchange (ICE) Benchmark Administration (IBA), which is the administrator of the London Interbank Offered Rate (Libor), announced on Nov. 30, 2020, that it will consult in early December on its intention to cease the publication of the one-week and two-month U.S. dollar (USD) Libor settings immediately following the Libor publication on Dec. 31,… (See Article)

Under State aid rules, UK and EEA Member State governments may not generally provide selective assistance to businesses without prior approval from the European Commission (EC). This includes assistance in the form of government direct grants, interest and tax reliefs, loans, guarantees, forbearance of existing loan terms, export credit insurance and equity investment. If these measures are provided selectively and on terms that the market would not provide (eg to a borrower in financial difficulty), or that are not being provided on arm’s-length commercial terms, they qualify as State aid and require prior approval from the EC. Please see full Publication below for more information. (See Article)

The European Union (EU) Observatory for Nanomaterials (EUON) announced on November 16, 2020, the results of a study on how citizens perceive nanomaterials and their potential risks to human health and the environment. According to EUON, the study found that general awareness about the nature, characteristics, and properties of nanomaterials is low. EUON notes that the level of awareness has increased compared to earlier surveys, however, and is expected to continue increasing in the future. (See Article)

The Financial Stability Board has published a Roadmap for enhancing cross-border payments. The Roadmap is the final stage in the G20's three-stage process to enable countries to enhance their cross-border payments systems. The FSB published the Stage 1 report in April 2020, which identified existing challenges in cross-border payments systems and specified key "frictions" in the cross-border payments system that contribute to these challenges. The Stage 2 report, published by the Committee on Payments and Market Infrastructures in July 2020, covered the 19 building blocks where further public and private sector work would enhance cross-border payments and address the frictions ascertained by the FSB. (See Article)

24 November 2020 marks the final approval of the new European collective actions legislation, the Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC (the "Directive"). (See Article)

Following its consultation earlier this year, the Financial Stability Board has published a final report on the regulation, supervision and oversight of global stablecoin arrangements. In the report, the FSB discusses the characteristics of GSCs, the risks posed by GSCs, existing approaches to regulating and supervising GSCs and issues with cross-border supervision of GSCs. Alongside the report, the FSB has published a summary of the responses to its consultation. (See Article)

On 23 September 2020, the General Court of the European Union (GC) annulled a decision of the European Commission (Commission) that had withdrawn the orphan drug status of Trecondi (Treosulfan). (See Article)

LATEST KEY DEVELOPMENTS - Competition & State Aid • EU approves new and amended Member State measures to support the economy • European Commission Executive Vice-President Margrethe Vestager speech on COVID-19 State aid measures Trade / Export Controls • European Commission introduces surveillance of bioethanol imports • Commission expands Guidance on COVID-19-related humanitarian aid in sanctioned environments Medicines, Medical Devices, and Personal Protective Equipment • European Commission issues Communication on Building a European Health Union: Reinforcing the EU’s resilience for cross-border health threats • European Commission enters into fifth vaccine contract with CureVac for supply of a potential COVID-19 vaccine Please see full Publication below for more information. (See Article)

There has been some important news to come out of the preliminary drafts of the Italian Tax Bill for financial year (FY) 2021, which may have a very significant–and positive–impact on the asset management industry and in particular for EU investment firms investing into Italian companies. This change is aimed at repealing a discrimination under Italian tax law in respect to the Italian tax treatment applicable to financial proceeds realized by foreign investment funds from Italian companies (dividends and capital gains) if compared with the more favourable tax treatment applicable to Italian investment funds on the same proceeds... (See Article)

Key developments of interest over the last month include: Europe: The CJEU has found that (i) PSD2 does not restrict the type of terms that can be changed by tacit consent, but where the payment service user is a consumer the UCTD applies and (ii) contactless functionality is a separate payment instrument. France: Ministry of the Economy and Finance has published a revised charter on banking inclusion and over-indebtedness prevention. (See Article)

On 17 November 2020, the European Commission published an inception impact assessment for a revision of the Tissue Directive and the Blood Directive. With this proposal, the European Commission aims to tackle existing shortcomings and gaps in the current legislation. (See Article)

In a judgment handed down on 13 November 2020, the High Court held that the UK government failed to provide workers with the right not to be disadvantaged for taking steps in response to serious and imminent danger and did not require employers to provide workers with suitable personal protective equipment. (See Article)

The EU Parliament has approved the EU Council’s position on representative actions. By doing so, it has paved the way for consumers in Europe to be able to sue companies collectively. (See Article)

On November 10th , during its 41st plenary session, the European Data Protection Board (“EDPB”) approved the text containing recommendations on measures integrating the transfer instruments to ensure compliance with the level of protection of personal data similar to that provided by EU law. (See Article)

On November 19, 2020, the European Food Safety Authority (EFSA) published a report entitled “Environmental Risk Assessment (ERA) of the application of nanoscience and nanotechnology in the food and feed chain.” The authors analyzed existing ERA guidance documents for their adequacy to cover issues that are specific for nanomaterials, but note that none of the guidance has a specific focus on the food and feed chain. (See Article)

Globally, competition regulators have increased their attention to digital companies since big tech firms and dual platforms have the capabilities to gain disproportional advantages. Competition and antitrust laws aim to protect the integrity of competition in a particular market by creating and enforcing regulations geared towards anti-competitive behavior. Recently, there has been a trend of… (See Article)

On 12 November 2020, the European Commission (EC) launched consultations on its initial plans to revise its 2014 Guidelines on State aid for environmental protection and energy (EEAG) and the corresponding provisions of the General Block Exemption Regulation (GBER). The EC has published: - An Inception Impact Assessment outlining the EC’s initial ideas for revision - An online questionnaire on various topics to be addressed by the revision. Please see full Publication below for more information. (See Article)

Earlier this month, the European Data Protection Board (EDPB) issued its long-anticipated draft guidance on supplemental tools to ensure that data transfers out of the European Union (EU) to third countries comply with the GDPR. (See Article)