vLex European Union

EPO - **By way of an update, on 29 July 2020 the EPO has decided to postpone all oral proceedings in examination and opposition proceedings scheduled until 31 December 2020 (previous date was 14 September 2020) unless they have already been confirmed to take place by means of videoconferencing or are converted into oral proceedings by videoconference with the applicant's consent. (See Article)

A notice of information has been published in the Official Journal of the European Union, postponing the entry into application of open access provisions for exchange-traded derivatives under the Markets in Financial Instruments Regulation until July 3, 2021. (See Article)

On 11 December 2019, the European Commission (Commission) unveiled the European Green Deal (Green Deal), an ambitious environmental and climate set of policy proposals aiming to achieve carbon neutrality in Europe by 2050. More concretely, the Green Deal emphasized that “should differences in levels of ambition worldwide persist, as the EU increases its climate ambition, the Commission will propose a carbon border adjustment mechanism, for selected sectors, to reduce the risk of carbon leakage.” (See Article)

The Situation: Negotiators for the European Parliament and the Council of the European Union (the "Council") have reached an agreement on new European rules on collective consumer action. The Council has thus published a proposal for a "Class Actions" Directive (the "Directive"). The Issue: The European Union ("EU") has been seeking to strengthen consumer rights vis-à-vis companies in "mass harm" situations by creating a collective representative action at the European level. This important Europe-wide harmonization will shape the future of national and cross-border consumer litigation. (See Article)

Insurance Europe indicated its support for the “ambitious objectives of the European Green Deal” as well as increasing the supply of long-term sustainable assets, making sustainability more “mainstream” and integrating ESG factors into portfolios. (See Article)

The Basel Committee on Banking Supervision has published final revisions to the credit valuation adjustment risk framework under the Basel III standards. The updated international standard sets out the proposed regulatory capital treatment of CVA risk for derivatives and securities financing transactions. The CVA risk framework is designed to manage the risk of banks incurring mark-to-market losses from deterioration in the creditworthiness of counterparties in derivatives or SFTs. The framework was last revised in December 2017, partly to align it with the Basel Committee's market risk framework. The latest revisions include... (See Article)

Online platform operators have a rare cause to be cautiously optimistic at news from the European court. In a recently-published European Court of Justice (ECJ) opinion, Advocate General Henrik Saugmandsgaard Øe stated that, under the current EU legal regime, operators should not be directly liable for the illegal uploading of protected works by platform users. This addresses a recurrent issue over the last few years, whereby platform operators have repeatedly argued that they cannot be held responsible for the activities of platform users... (See Article)

In recent years there has been increasing focus on arbitrators also acting as counsel, a practice known commonly as ‘double hatting’ or ‘dual hatting.’ This can result, for example, in arbitrators appearing as counsel before tribunals composed of arbitrators with whom they had previously sat. This practice is now attracting increasing criticism on the basis that performing multiple and sometimes overlapping roles can affect an arbitrator’s ability to act impartially. Double-hatting can also have an economic impact, leaving awards vulnerable to annulment. (See Article)

16 July 2020 will go down in data protection history. On that day, the EU Court’s decision in Schrems II dealt international data transfer a mighty blow. (See Article)

The regulation is part of the EU Digital Single Market strategy to harmonise digital rights. From 12 July 2020, the EU’s Platform-to-Business Regulation 2019/1150 (P2B Regulation) promoting fairness and transparency for business users of online intermediation services applies. (See Article)

The decision of the Court of Justice of the European Union (CJEU), in Schrems II, invalidating the EU-U.S. Privacy Shield has engendered significant uncertainty regarding data transfers from the EU to the United States. In reaction, the European Data Protection Board (EDPB), an association of representatives of the EU data protection authorities (DPAs), has issued guidance on Schrems II in the form of answers to twelve frequently asked questions received by DPAs relating to the decision. (See Article)

If you transfer data from the EU to the US, or if your trusted service providers do, the Schrems II European Court decision1 has seismic significance - even if you do not rely on Privacy Shield.  On July 16, 2020, the Court of Justice of the European Union (CJEU) issued its much anticipated judgement in what has become known as the Schrems II case. (See Article)

On July 7, the Court of Justice of the European Union (ECJ) invalidated the EU-US Privacy Shield framework in its ruling in Data Protection Commissioner v. Facebook Ireland and Maximillian Schrems (Case C-311/18). More than 5,000 organizations in the United States have certified their adherence to this framework, and have relied on it to receive personal data from organizations in the EU in compliance with the General Data Protection Regulation (GDPR) since 2016. The framework was a joint effort between the US Department of Commerce and the European Commission and Swiss Administration to provide companies on both sides of the Atlantic with a mechanism to comply with data protection requirements when transferring personal data from the European Union and Switzerland to the United States in support of transatlantic commerce. The Department of Commerce released the following statement... (See Article)

There is increasing awareness about the interconnected nature of climate-related issues such as biodiversity loss, health, human rights, security and inequality. Indeed, climate change disputes are on the rise, and the International Bar Association (the “IBA”), in its 2014 report (Achieving Justice and Human Rights in an Era of Climate Disruption), called for the immediate creation of an international ad hoc arbitral body specifically for environmental litigation and the eventual establishment of an International Court for the Environment. (See Article)

In the wake of COVID-19, businesses have a host of health regulations and recommendations to consider before they resume in-person activity. Some employers plan to screen for symptoms, including regular thermal testing (or temperature taking) of employees and site visitors before those individuals enter a facility. (See Article)

On 24 July 2020, the European Commission (the “Commission”) published its proposed amendments to the current securitisation framework set out in Regulation (EU) 2017/2402 (the “Securitisation Regulation”). (See Article)

In the second installment of McDermott’s webinar series, HPE Europe 2020: What are the Life Science Transaction Trends in the Wake of the Sanitary Crisis?, moderator and McDermott partner Emmanuelle Trombe and industry experts Joseph El Khoury of Natixis, Cédric Garcia of EY’s Life Science Group, Dr. Erich Tauber of Themis Bioscience and Daniel Teper of CYTOVIA Therapeutics shared lessons learned from the first half of 2020, when COVID-19 changed the world. The panelists also discussed the outlook for life sciences transaction trends in the second half of the year and beyond... (See Article)

Key Takeaways - - Foreign Direct Investment (FDI) controls are proliferating around the globe. Since the pandemic, “health” has become a particular focus.  - Several countries have adapted their existing FDI rules, or introduced new ones, to address concerns about national autonomy and supply chain disruption. Some of these changes are general, but some are specific to healthcare.  - Plans for cross-border M&A in the healthcare sector should take close account of potential FDI screening requirements, in addition to usual merger controls.... (See Article)

While most state privacy laws exempt non-profit organizations, it is a best practice for churches and faith-based organizations to have a privacy policy informing members about how their personal information is handled. It is especially important to note that faith-based non-profit organizations are not exempt from compliance with the General Data Protection Regulation (GDPR) — adopted by the European Union in 2018 to protect the data and privacy of EU citizens. So if your church processes any data of EU citizens, it must comply with the GDPR... (See Article)

On July 23, 2020, Centus Biotherapeutics received a positive opinion from the European Medicines Agency’s Committee for Medicinal Products for Human Use (CHMP) for EQUIDACENT, a biosimilar to AVASTIN (bevacizumab), intended for the treatment of carcinoma of the colon or rectum, breast cancer, non-small cell lung cancer, renal cell cancer, epithelial ovarian, fallopian tube or primary peritoneal cancer, and carcinoma of the cervix.  Centus Biotherapeutics is a joint venture between Fujifilm Kyowa Kirin Biologics and AstraZeneca. (See Article)

Das Privacy Shield zur Datenu¨bermittlung in Drittländer ist ungu¨ltig. Die EU-Standarddatenschutzklauseln du¨rfen Unternehmen weiter einsetzen, allerdings nur in eigener Verantwortung und nach einer Einzelfallpru¨fung. Der Europäische Gerichtshof (EuGH) hat in einem wegweisenden Urteil (Urteil vom 16. Juli 2020, Rechtssache C-311/18 — „Schrems II“) u¨ber Instrumente fu¨r internationale Datentransfers entschieden. Er hat den sogenannten EU-U.S.-Privacy Shield (Beschluss 2016/1250 — „Privacy Shield“) fu¨r unwirksam erklärt. Zugleich entschied der EuGH auch u¨ber die sogenannten EU-Standarddatenschutzklauseln (Beschluss 2010/87/EU — „Standarddatenschutzklauseln“). Diese sind nach dem Gericht (See Article)

Federal measures specifically targeted at the entertainment sector, including event organizations: ..Right to temporarily not refund: if the same event is organized at a later date within a reasonable period (except if the consumer can prove that he/she cannot attend the event at the later date), the organization will be granted the right not to refund. ..Extended reimbursement period: if the event cannot be organized at a later date, the organization will be granted a sufficient period of time for reimbursement so that reimbursements can be spread over time. Please see full Publication below for more information. (See Article)

In the fourth installment of McDermott’s HPE Europe Summer Webinar Series 2020: What’s the Impact of Recent Regulation and Government Measures on Investments in Healthcare and Life Sciences in Europe? moderator and McDermott partner Dr. Stephan Rau and industry experts Karthic Jayaraman of TPG Capital, Max Müller of Bayer, Ben Faircloth of L.E.K. Consulting and Dr. Ulrich Wandschneider, former CEO of Asklepios AG, currently at Trilantic Capital Partners and Supervisory Board member of BioNTech SE, the Nasdaq-listed developer of COVID vaccine, headquartered in Germany, discussed the impact that COVID-19 and the government measures to address it have had on investments in healthcare and life sciences in Europe... (See Article)

In parallel to a public consultation to seek feedback from the public regarding the New Competition Tool, the European Commission (Commission) is consulting on a proposal for an ex ante regulatory instrument that would ensure that “online platform ecosystems controlled by large online platforms that benefit from significant network effects remain fair and contestable, in particular in situations where such platforms may act as gatekeepers”... (See Article)

The European Banking Authority has published final guidelines on the implementation of the structural FX provision under the Capital Requirements Regulation. The CRR requires institutions to calculate their net open positions in currencies according to specified formulae but permits institutions to exclude positions that have been taken for hedging purposes and that are structural. The guidelines will apply to both firms and national regulators from January 1, 2022, to allow firms time to comply with the new framework.  However, regulators should review, update or revoke permissions already granted before the guidelines apply. (See Article)

The European Commission has last week published a draft regulation to amend the Benchmark Regulation (“BMR”), in respect of (i) the exemption of certain third country foreign exchange benchmarks and (ii) the designation of replacement benchmarks for certain benchmarks in cessation (the “Draft Regulation”). (See Article)

The Basel Committee on Banking Supervision has published final updated guidelines on the "Sound management of risks related to money laundering and financing of terrorism". The updated guidelines apply to all banks, banking groups and relevant regulators. (See Article)

COVID-19, and the economic challenges this has created for companies, will result in employers across Europe forced into cutting costs, which may well include having to make redundancies. Redundancy procedures are, however, tightly regulated with employee’s rights closely protected by both legislation and case law. This is especially the case when collective redundancies are required. (See Article)

In the International Skating Union case, the European Commission investigated the compatibility of the ISU’s Eligibility Rules with EU competition law following a complaint by two Dutch ice speed skaters. Upon finding the ISU’s Eligibility Rules incompatible with Article 101 TFEU, the Commission issued a decision requiring the ISU to adopt remedies to end the infringement. At its June 2020 hearing before the EU General Court, the ISU challenged the validity of the Commission’s infringement finding as well as the remedies imposed upon it.  Pending judgment, this alert explores the guidance those remedies provide to sports governing bodies and event organisers. (See Article)

This morning, Germany’s Federal Data Protection Authority (DPA) announced that the European Data Protection Board (EDPB) has finalized an initial set of FAQs on international transfers in light of the recent Schrems II judgment.  You can read our detailed analysis of the Schrems II judgment here.  (See Article)