vLex European Union

The European Commission has published a Communication on its EU retail payments strategy for the coming years. The payments sector has experienced significant change in recent years. Retail payments are increasingly dematerialized and disintermediated, with large technology companies playing a more significant part in the payments sector. The EU payments market is also largely fragmented along national borders, leading to a small number of large firms providing cross-border services and inhibiting domestic FinTechs. The Commission's strategic objective is to establish a clear EU policy framework for retail payments that manages the risk of inconsistencies and market fragmentation across the EU. The Retail Payments Strategy is based on four key Pillars... (See Article)

Since early this year, the COVID-19 virus substantially affects our daily life. Testing for the presence of or past exposure to the virus is an essential aspect of combatting the COVID-19 outbreak and a number of companies are developing testing solutions for healthcare professionals and patients. (See Article)

The European Medicines Agency (“EMA”) has announced its intention to update the Agency’s existing guidance concerning additional risk minimisation measures (“aRMMs”). The revised version will provide extensive guidance on various tools for additional risk minimization. (See Article)

Internet-connected healthcare devices, ubiquitous in hospitals, are often rife with vulnerabilities. Here’s how hospitals can keep their networks secure and patients safe. Hospitals are often synonymous with treatment and care, but cyber actors view them as prime targets for their attacks. (See Article)

The European Commission has published proposals for a new EU Regulation on digital operational resilience for the financial sector and a new EU Directive amending certain pieces of existing EU financial services legislation to strengthen digital operational resilience and provide legal certainty on crypto-assets. The new legislation has been proposed as a result of the risks arising from the increase in digital opportunities within the financial sector. There are currently no detailed rules at EU level on digital operational resilience, exposing the need for comprehensive and harmonized legislation governing this area. (See Article)

In three recent judgments issued on 5 October 2020, the General Court of the European Union ("GCEU") partially annulled the European Commission’s ("Commission") decisions of February 2017 which had authorized onsite unannounced inspections ("dawn raid”) to be carried out at the headquarters of two French food retail chains, Casino and Intermarché ("ITM"). With these judgments, the GCEU further clarified the limits of the investigative powers of the Commission. (See Article)

CEP Magazine (October 2020) - On July 16, the Court of Justice of the European Union declared the European Commission’s July 2016 decision on the adequacy of the privacy protection provided by the EU-US Privacy Shield as invalid. As a result, the EU-US Privacy Shield framework is no longer a valid mechanism to comply with General Data Protection Regulation (GDPR) requirements when transferring personal data from the European Union to the United States. The decision does not, however, relieve participants in the EU-US Privacy Shield of their obligations under the framework. (See Article)

On 21 September 2020, the European Commission adopted a time-limited equivalence decision for UK clearinghouses (also referred to as central counterparties ("CCPs")) in view of EU financial stability considerations, which extends market access to UK CCPs for 18 months after the expiry of the Brexit transition period. (See Article)

This regular update (no. 24 | 13 October 2020) covers key regulatory EU developments related to the evolving COVID-19 situation (Antitrust & State Aid; Trade/Export Controls; Medicines, Medical Devices and Personal Protective Equipment; and Cybersecurity, Privacy & Data Protection). Please see full Publication below for more information. (See Article)

The EU has published a call for contributions to gather ideas and proposals on how EU competition rules (State aid, antitrust, and merger control) and sustainability policies can best work together. The aim is to gather the widest set of views possible to determine how the competition rules should be amended (if need be) to help facilitate the transition to a green economy. The deadline for contributions is 20 November 2020. The contributions will feed into a conference taking place in early 2021. Please see full Publication below for more information. (See Article)

The fourth amendment extends and modifies the framework to support companies affected by COVID-19. On 13 October 2020, the European Commission (Commission) published a fourth amendment to the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak (Temporary Framework). The fourth amendment: ..Extends the availability of measures set out in the Temporary Framework ..Adds a new instrument allowing governments to provide support for uncovered fixed costs of companies that have suffered from the suspension or reduction of their business activities ..Modifies rules for Member State exit from recapitalisation measures ..Extends the temporal removal of all countries from the list of “marketable risk” countries under the Short-term export-credit insurance Communication (STEC). Please see full Alert below for more information. (See Article)

The European Commission has published a proposed Regulation on digital operational resilience within the financial services sector in the EU. This will replace and harmonise existing guidance in relation to ICT and security risk management and will bring major ICT service providers directly within the scope of supervision by the European Supervisory Authorities. (See Article)

On 24 September 2020, the European Commission (Commission) launched its Digital Finance Strategy (Strategy). The Strategy includes, among other elements: (i) a proposal for a Regulation on Markets in Crypto-Assets with its accompanying Annex (Markets Regulation); and (ii) a proposal for a Regulation on a pilot regime for Market Infrastructure based on Distributed Ledger Technology (DLT) (Pilot Regime Regulation). (See Article)

We are pleased to publish the Third Edition of our Energy & Infrastructure Insight, providing information and analysis of the current issues facing the energy and infrastructure sectors across the globe. In this latest edition we examine the European infrastructure market and consider the differing impact the COVID-19 pandemic has had on M&A activity by sector and the terms of the deals being agreed. In a similar same vein, we also examine the rationale and processes for monetizing embedded "non-core" infrastructure assets and key issues for sellers and investors and operators. However, where there is challenge there is also opportunity and, against a background of market unrest caused (See Article)

On 14 October 2020, the EU designated under its asset freeze six Russian officials and one research institute, in response to the poisoning of Russian opposition leader Alexei Navalny in August 2020. Separately, it also designated Yevgeniy Viktorovich Prigozhin, a Russian businessman involved in breaches of the Libyan arms embargo... (See Article)

The World Trade Organization (WTO) issued a decision that the European Union (EU) is authorized to impose tariffs on approximately $4 billion worth of annual imports from the United States, an amount the WTO found to be “commensurate with the degree and nature of the adverse effects determined to exist.” The WTO’s decision is part of a long-time dispute between the United States and the EU over their respective subsidies to Boeing and Airbus... (See Article)

A draft regulation reveals the contours of the legal framework for crypto-assets and blockchain technology for financial market infrastructure in the EU - New legislative proposals on crypto-assets and DLT market infrastructure The European Commission after consultation with various stakeholders has expedited its work on the Digital Finance package, aiming to enable and support digital finance in the EU. The first concrete actions within the Digital Finance package are legislative proposals, recently leaked to public, on: (See Article)

The European Banking Authority has confirmed that it will phase out its Guidelines on legislative and non-legislative payment moratoria in accordance with its September 30, 2020 deadline. The EBA originally published the Guidelines in April 2020, stipulating that, for a period of three months, banks should not class payment moratoria that were based on national law or private-sector initiatives as forbearance or distressed restructuring practices, in light of the COVID-19 pandemic... (See Article)

Website and app operators are jointly liable with Facebook for violations of European data protection law - In its judgment of 29 July 2019 (ref.C-40/17), the European Court of Justice has ruled on two essential points... (See Article)

United Kingdom, French and Belgian national security laws (and such laws of other EU Member States) fell under the scrutiny of the Court of Justice of the European Union (CJEU), which on October 6, 2020, ruled on whether such laws were compatible with European Union (EU) privacy, data protection and fundamental rights principles. The take-away point is that the CJEU confirmed that certain national security laws were incompatible with Directive 2002/58/EC of the European Parliament and of the Council of July 12, 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector (the “ePrivacy Directive”), which together with the General Data Protection Regulation (GDPR) provides the main pillars of the framework of EU data protection and privacy laws... (See Article)

The International Swaps and Derivatives Association has written to the Co-Chairs of the Financial Stability Board Official Sector Steering Group seeking input on its proposed timing for the launch of its IBOR Fallbacks Protocol and IBOR Fallbacks Supplement... (See Article)

The International Organization of Securities Commissions has published guidance on how to address potential conflicts of interest and associated conduct risks for intermediaries involved in the issuance of debt securities. Intermediaries may perform a variety of roles on a debt capital raising transaction and may also have a proprietary interest in the transaction itself.  In 2017, the IOSCO Board decided to examine conflicts of interest and other conduct risks in the capital raising process. IOSCO published guidance for the equity capital raising process in September 2018. (See Article)

From the very early days of Regulation (EU) 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories "EMIR", as amended by Regulation (EU) 2019/834 of the European Parliament and of the Council of 20 May 20192 ("EMIR Refit"), being discussed, the enormous difficulties that mandatory clearing would pose in respect of pension scheme arrangements ("PSA") were obvious. It surprised no one that pursuant to Article 89(1) of EMIR, pension scheme arrangements were eventually excluded from the clearing obligation and were subject to a transitional period of three years. (See Article)

In a letter dated August 18, 2020, the European Securities and Markets Authority (ESMA) wrote to the European Commission (EC) on certain topics it considers a priority to address in the context of the EC’s review of the Alternative Investment Fund Managers Directive (AIFMD), which is occurring seven years after the AIFMD was passed into law on July 22, 2013.... (See Article)

The European Central Bank has published a Decision in the Official Journal of the European Union temporarily excluding certain central bank exposures from significant Eurozone banks' leverage ratio calculations for the purposes of the EU Capital Requirements Regulation. The Decision will enter into force on September 26, 2020 and the exclusion will apply until June 27, 2021. (See Article)

The COVID-19 pandemic has made 2020 a difficult year for many companies looking to do deals. Competition agencies and other government regulators have in many cases slowed down their timeframes or even refused to accept regulatory filings. (See Article)

The European Commission is opening multiple fronts to adapt and increase regulatory oversight of digital players in the EU Internal Market. At the same time, EU member states such as Germany and France on the one hand, as well as the United Kingdom on the other, are taking separate initiatives at the national level. This activity is all taking place while legislators and regulators in the United States are likewise focused on digital markets. This White Paper gives an overview of the initiatives, highlighting differences and common features. Please see full Publication below for more information. (See Article)

In her first speech upon being reappointed as Competition Commissioner, Commissioner Vestager announced that a review would be undertaken of the Commission’s Market Definition Notice (the “Notice”); the consultation on that review closed Friday, October 9th. The Notice is an important document in European competition law; it sets out the analytical framework under which the Commission decides who competes with who, a process which has determinative implications in both merger control and antitrust enforcement. The Notice is however older than most law firm trainees and clearly showing its age. Revising the Notice now can act as a release valve in response to calls for radical reforms to the m (See Article)

The long-awaited application of the European Union (EU) Regulation on a framework for the screening of foreign direct investment (FDI) in the EU started yesterday, 11 October 2020. It is still early days to anticipate how the EU rules will be implemented in practice by the member states and the European Commission, and what impact will lie ahead in national FDI vetting proceedings. (See Article)

ANTITRUST AND COMPETITION - The French Competition Authority Imposes a Record Fine of €444 Million on Three Pharma Companies for Collectively Exploiting Their Dominant Position - On 9 September 2020, the French Competition Authority (FCA) found that three pharma companies collectively held and exploited their dominant position in the age-related macular degeneration (AMD) market. (See Article)