vLex European Union

Under current EU merger control rules, whether a concentration has to be notified to the European Commission (“Commission”) depends, among other things, on the level of revenue generated by the parties worldwide and in the European Union. A key question that has sparked considerable debate in recent years is whether the current merger control thresholds cover all transactions that have the potential to harm competition, or whether there is a so-called “enforcement gap”... (See Article)

Almost one year after its adoption by the European Parliament, more than half of the EU’s 27 Member States have started transposing the EU Whistleblower Protection Directive into national law. Now, little over 14 months remain until the transposition deadline leaving the clock ticking loudly not just for lawmakers, but also for the organisations that will be required to follow the new rules. (See Article)

The Vertical Block Exemption Regulation (VBER)—the antitrust legislation governing most vertical arrangements in Europe—entered into force on June 1, 2010. Among other things, it creates a safe harbor for vertical agreements which meet certain conditions, shielding them practically from the application of Article 101 of the Treaty on the Functioning of the European Union (TFEU). Guided by the VBER and the Vertical Guidelines published by the European Commission (EC), the onus is on companies to self-assess their vertical agreements. (See Article)

The Development - ..The European Commission (EC) has published a 232-page Staff Working Document that summarises the findings of its evaluation of the EU Vertical Block Exemption Regulation (VBER) and accompanying Vertical Guidelines to confirm whether they are still fit for purpose. ..This Staff Working Document is an important milestone in the EC’s current review, closing the evaluation phase and launching a new phase in which concrete proposals for revision will be put forward. Whilst not radical, the changes are likely to be important and focus mainly on reflecting the digital economy. ..Within the next weeks, the EC will launch an impact assessment to look into the policy optio (See Article)

ESG and the reasonable investor test under MAR. Background - Historically, “profit maximisation” has been regarded as the sole (or predominant) objective for investors. Today, however, an ever-increasing proportion of investors have additional/alternative - sustainability (or ESG)-related - objectives (See Article)

On Monday September 7, 2020, the European Data Protection Board (EDPB) issued draft Guidelines 8/2020 on the targeting of social media users (the "Draft Guidelines"). The Draft Guidelines have far-reaching implications for social media platforms, advertisers, and adtech companies, as they will result in a clarification of the roles and responsibilities of the key stakeholders, and establish rules for consent. (See Article)

Generally, contact tracing refers to an effort by public health officials to identify individuals with whom a patient who has tested positive for an infectious disease has been in close proximity. Public health officials will inform these individuals that they were exposed to a contagious patient and encourage them to monitor their symptoms and quarantine for a period of time. In response to COVID-19, governments around the world have explored using digital contact tracing, by which smartphone users download an application (app) to enable public health officials to track infected individuals’ contacts. In addition, private sector companies are exploring how digital technologies can be used for contact tracing on employees as they reenter the workplace. Please see full Publication below for more information. (See Article)

In 2018, the 2° Investing Initiative (“2DII”) — an international, non-profit think tank working to align financial markets and regulations with the Paris Agreement’s goal of keeping global temperature rise this century well below 2 degrees Celsius above pre-industrial levels — launched the Paris Agreement Capital Transition Assessment (“PACTA”) tool... (See Article)

The list of events for which 2020 will be remembered continues to grow and we are only two thirds of the way through the year. Environmental, social and governance (ESG) issues have come into focus in the financial community, with different stakeholders taking varying positions on factors within the three limbs. Consider, for example, the recent data from Morningstar that shows assets under management of ESG funds has grown to exceed $1 trillion globally. In the private funds community, ESG considerations are not a new issue. Many institutional investors, particularly those from Europe, have for some time included ESG-related requests as part of their due diligence of fund sponsors, and set o (See Article)

The European Securities and Markets Authority has published a statement confirming that the 2019 Guidelines on stress test scenarios under the Money Market Funds Regulation will be updated by the end of 2020 to reflect COVID-19 market developments. The MMF Regulation has applied directly across the EU since July 21, 2018. MMFs are fund vehicles that invest in highly liquid short-term debt instruments, such as government bonds, and are often regarded as a short-term cash management function alternative to bank deposits... (See Article)

This On The Subject explains how the Mini One Stop Shop (MOSS) system for VAT works and what affected businesses need to do to prepare for Brexit-related changes after the transition period ends. In summary, unless a suitable trade deal is agreed between now and 31 December 2020, worldwide businesses engaged in cross-border sales of business-to-consumer (B2C) digital services to EU-based consumers on or after 1 January 2021 will no longer be able to register in the UK for administration of EU-wide VAT under the UK’s MOSS system. Such businesses would either need to register for EU-wide VAT in an EU member state under that country’s own equivalent MOSS system, or make separate registrations for local country VAT in the EU countries where their consumers are based... (See Article)

The European Securities and Markets Authority has published a final report and final draft Regulatory Technical Standards to further postpone the securities settlement discipline rules under the Central Securities Depositories Regulation to February 2022... (See Article)

On Friday September 4, 2020, the European Data Protection Board (EDPB), a body consisting of representatives of all the Data Protection Authorities (DPAs) in the European Economic Area, announced that it had formed two new taskforces, following the groundbreaking Schrems II ruling by the Court of Justice of the European Union (CJEU) in July 2020. In that judgment, the CJEU held that Standard Contractual Clauses (one of the mechanisms for lawfully transferring personal data from the EU to the U.S. under the General Data Protection Regulation (GDPR)) were in principle valid, but in certain circumstances additional safeguards were required, in particular when transferring data to the U.S. The CJEU also held that relying on the EU-U.S. Privacy Shield was an invalid mechanism for transferring personal data... (See Article)

In early September 2020, HMRC updated its guidance on the VAT treatment of early termination fees, compensation payments and liquidated damages following recent decisions of the Court of Justice of the European Union (“CJEU”). Whether a payment is a supply for VAT purposes depends on whether anything is done in return for that payment; where a party agrees to do something in return for the payment there is a supply for VAT purposes. Until the recent update, HMRC considered that payments that were compensatory in nature were outside the scope of VAT (as there was no supply for VAT purposes)... (See Article)

In today’s rapidly evolving global economy, data is king. Whether we’re talking about blockchain, analytics or how much your online shadow personality is being sold for, there is no doubt that there is an incredibly lucrative market for gathering, storing and selling data. (See Article)

The European Union Taxonomy Regulation (the “Taxonomy”) entered into force on July 12, 2020, as part of the European Commission’s (the “Commission”) broader action plan on sustainable finance initiated in March 2018... (See Article)

“Convention 108+ (Convention 108 as amended by the protocol) is set to become the international standard on privacy and data protection in the digital age, and represents a viable tool to facilitate international data transfers while guaranteeing an appropriate level of protection for people globally,” say Alessandra Pierucci, Chair of the Committee of Convention 108 and Jean-Philippe Walter, Data Protection Commissioner of the Council of Europe... (See Article)

The European Commission (Commission) has released a Staff Working Document concerning its joint evaluation of the Orphan Regulation and the Paediatric Regulation (collectively, the Regulations) (Joint Evaluation) and an executive summary thereof... The Joint Evaluation assessed the strengths and weaknesses of the Regulations, both separately and in combination with each other; explained past uses of the incentives and rewards; and analyzed the related financial consequences. It is a very important document because it will guide the Commission in proposing changes to the legal framework. The next step should be an impact assessment of the policy options envisaged by the Commission (expected for Q4 2020). (See Article)

In the span of two weeks in August, two different owners of allegedly standard essential patent (SEP) portfolios—asserted against the implementation of cellular standards including 4G/LTE—won cases in Germany and in the United Kingdom. (See Article)

ANTITRUST AND COMPETITION - Commission approves German scheme compensating public transport companies - On 7 August 2020, the European Commission approved €6 billion in German state aid to compensate regional and local public transport companies. The aid will go towards public transport companies that faced damages due to the coronavirus pandemic. (See Article)

The “Economic Operators Registration and Identification number” (EORI number), basically an ID number for customs purposes that is assigned by a customs authority to any businesses or people (economic operators) wishing to trade in the EU has just become a mandatory field in any customs application for action (AFA). (See Article)

Nadie puede ignorar la importancia de las redes sociales hoy en día. A nivel usuario, se han erigido como uno de los principales canales de comunicación y pilar de las nuevas (o no tan nuevas) generaciones, y a nivel de empresa como una tentadora fuente de información e instrumento para dirigirse a los usuarios. (See Article)

On September 7, 2020, the European Data Protection Board (‘EDPB’) published its draft guidelines on targeting of social media users (the ‘Guidelines’). The EDPB is accepting feedback from stakeholders on the Guidelines until October 19, 2020. (See Article)

The proposal is part of an effort to aid economic recovery and enhance the capacity of banks to lend to corporates and SMEs. The European Commission’s proposal to amend the Securitisation Regulation1 and the Capital Requirements Regulation (the CRR)2 comprise part of its Capital Markets Recovery Package to help mitigate the economic effects of the coronavirus pandemic. Although the EU regulatory framework for securitisations is due for a comprehensive review with possible legislative amendments by January 2022, in July 2020 the Commission brought forward certain targeted amendments, in an effort to aid economic recovery and enhance the capacity of banks to lend to corporates and, in partic (See Article)

Following the European Court of Justice’s (ECJ) rulings in Meo and Vodafone Portugal, HMRC has recently updated its VAT manual and published a brief (https://www.gov.uk/government/publications/revenue-and-customs-brief-12-2020-vat-early-termination-fees-and-compensation-payments/) stating that payments arising out of early contract termination will now be treated as consideration for a taxable supply therefore subject to VAT. This marks a significant change from HMRC’s… (See Article)

The events of 2020 have caused many brands to re-evaluate whether they are fully utilizing the internet as a tool to reach out to consumers with many enhancing and upgrading their own brand websites. Some brands are now also considering whether they are fully harnessing the potential reach and profile of multibrand websites and platforms to make sales to consumers. (See Article)

The Prudential Regulation Authority (“PRA”) published a statement announcing that it intends to terminate, with effect from 30 September 2020, the temporary approach to value-at-risk (VAR) back-testing exceptions it announced in March 2020 in the light of the COVID-19 pandemic. (See Article)

The European Data Protection Board (“EDPB”) has published draft guidelines on the concepts of controller and processor for public consultation. While its predecessor – the Article 29 Working Party – had issued guidance on the concepts of controller/processor (Opinion 1/2010, WP169) back in 2010, many practical concerns have been raised since the entry into force of the General Data Protection Regulation (“GDPR”). (See Article)

On the heels of the Court of Justice of the European Union’s decision in Schrems II, Switzerland’s Federal Data Protection and Information Commissioner (FDPIC) has determined that the U.S.-Swiss Privacy Shield does not meet the “requirements of adequate data protection as defined by the FADP (Swiss Federal Act on Data Protection).” It issued a policy paper offering advice on transferring data to countries not on its list of nations with adequate safeguards... (See Article)

Latham develops new resource to identify considerations for assessing SCC and BCR data transfers in Europe. Following the Schrems II decision in July 2020, organisations relying on the standard contractual clauses (SCCs) or Binding Corporate Rules (BCRs) to transfer personal data outside of the European Economic Area are required to assess whether the law of the destination country ensures adequate protection for the personal data being transferred. (See Article)