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  • EU State Aid Temporary Framework for COVID-19 - Fourth Amendment

    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...

  • The European Green Deal & Competition Policy

    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...

  • Jurisdictional issues in deals involving joint ventures: Review of the General Court judgment in HeidelbergCement and Schwenk Zement (T-380/17)

    The judgment provides useful jurisdictional clarifications for deals involving joint ventures (JVs) acting as an acquirer. The General Court (GC) confirms that when the true players behind the transaction are the parent companies, rather than the JV - because they did the deal valuation, negotiated the transaction structure, and determined the purchase price - the parent companies are the...

  • Dawn Raid Update: Review of the EU General Court’s dawn raid appeal judgments in the distribution sector

    The Development - ..On 5 October 2020, the General Court of the European Union (GC) partially annulled decisions of the European Commission (EC) to order on-the-spot inspections (dawn raids) of a number of French retailers. ..The GC held that the EC did not have sufficiently strong evidence to launch dawn raids in respect of some of the suspected behaviour, namely in...

  • MiCA: EU Commission Publishes Comprehensive Cryptoasset Market Regulation Proposal

    The proposed regulation will provide greater consumer and investor protection and lessen the risks of participating in digital finance. The EU Commission has published a proposal for a wide-ranging EU regulation covering cryptoassets and e-money tokens, both of which are currently largely unaddressed in EU financial services legislation.

  • Impact of COVID-19: New Exemptions Under Antitrust Law

    EU/EFTA/ECN – On 23 March 2020, the competition authorities in the European Competition Network (the European Commission, the EFTA Surveillance Authority, and the national competition authorities of the EU/EEA) issued a Joint Statement on the application of competition law during the COVID-19 crisis. The Joint Statement notes that the ECN “understands that this extraordinary situation may trigger

  • EU State Aid Rules for Large Infrastructure Projects: Review of the European Court of Justice’s Hinkley Point Judgment (C-594/18P)

    On 22 September 2020, the European Court of Justice (ECJ) delivered a judgment confirming the prior ruling by the General Court that validated the European Commission’s (EC’s) decision that the UK government could lawfully grant State aid to support the construction of the Hinkley Point C nuclear power station in Somerset, England. This is the first time that the European Courts have...

  • The MAR Review — ESMA’s Final Report

    ESMA advises the European Commission to consider some, but not all, of ESMA’s original proposals — and gives guidance on pre-hedging and market soundings along the way. Key Points: ..Pre-hedging / front running: ESMA proposes developing detailed guidance on acceptable practice, but identifies a number of factors such as trade by trade transparency that may be disruptive to...

  • Sustainable Finance and Climate Change Risk in Financial Services: For Insurers

    In a July 2020 speech on climate action in the financial industry, Sarah Breeden, executive director for UK Deposit Takers Supervision, said the industry is “at the start of a critical decade for climate action where the decisions we take today will shape the future of our planet for decades to come”. Accordingly, UK regulators now expect the industry to take action. This briefing...

  • Earnouts Are Rising Across Europe, But Can They Unlock COVID-19 Valuation Gaps?

    Despite practical challenges, earnouts are a tool that PE buyers should increasingly consider to reconcile differences and get deals done. The use of earnouts, though historically disliked by PE buyers, is increasing across Europe. Earnouts can provide a way to bridge valuation gaps, a common need given frothy valuations pre-COVID-19, and a more frequently encountered issue during H1 20

  • PE Can Pursue PIPE Dreams

    European PIPEs — which have experienced an uptick due to COVID-19-related market volatility — present unique structural, informational, and governance considerations for private equity investors. European private investments in public equity (PIPEs) have historically been rare, particularly compared with the US. However, since the onset of the COVID-19 pandemic, companies have sought...

  • European Secured Notes - Coming to a Bank Near You?

    The bank-funding instrument is designed to unlock liquidity for SME loans. Key Points - ..The impact of COVID-19 on European small and medium-sized enterprises (SMEs) is expected to be severe1 — further underscoring the business case for a diversity of instruments designed to stimulate access to financing for SMEs. ..European Secured Notes (ESNs) are a bank-funding...

  • Article 22 EU Merger Referrals

    The European Commission (EC) has announced that - from mid-2021 - it will start accepting referrals of transactions from EU national competition authorities (NCAs) that fall below the national merger control thresholds. To be referred to the EC, transactions must threaten to significantly affect competition within the territory of the Member State or States making the request. Please...

  • EU Distribution Rules Under Review

    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

  • MAR and Sustainable Investing/ESG

    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

  • European Commission Proposes Amended Framework for the Securitisation of Non-Performing Exposures

    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...

  • EU Regulatory & Antitrust Monitoring on Sustainability Newsletter - September 2020

    Welcome to the inaugural issue of the EU Regulatory & Antitrust Monitoring on Sustainability newsletter. The September issue features six key takeaways from the past month to which companies and investors operating in the EU should pay attention. Further details on these topics are included below. Please see full Newsletter below for more information.

  • Practical Considerations for Assessing Data Transfers after Schrems II

    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...

  • ECB Seeks EU Banking M&A With New Supervisory Guide

    The Guide is intended to provide fresh clarity on the ECB’s approach to assessing proposed M&A transactions and enhance the transparency and predictability of supervisory actions. Key Points: Under the Guide, the ECB will: ..Not automatically penalise proposed M&A transactions by applying higher capital requirements; the starting point for capital will be...

  • Lösungsansätze für grenzüberschreitende Datentransfers nach dem Schrems II-Urteil des EuGH

    Fragen, Antworten und Praxistipps zum weiteren Einsatz von Standardvertragsklauseln - Der Europäische Gerichtshof (EuGH) hat mit seinem Urteil vom 16. Juli 2020, Rechtssache C-311/18 („Schrems II“) die Rahmenbedingungen für internationale Datentransfers neu geordnet. Danach ist der Privacy Shield für Datenübermittlungen in die USA ungültig.

  • European Commission Proposes Changes to MiFID II Due to COVID-19

    Many of the wide-ranging amendments address the perceived barriers MiFID II introduced in capital markets and are likely to be welcomed by industry. Key Points: ..The amendments aim to remove administrative burdens that result from information and disclosure rules. .. Bonds with make-whole clauses are to be exempt from the product governance regime; the amendments

  • EU Platform-to-Business Regulation Enters Into Force

    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.

  • COVID-19: EU State Aid Granted to the Events, Entertainment & Media Sectors

    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. ..

  • Das Schrems II-Urteil des EuGH: Was mu¨ssen Unternehmen bei internationalen Datentransfers ändern?

    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...

  • CJEU Invalidates EU-US Privacy Shield

    A ruling by the EU’s top court invalidates the key mechanism for transferring personal data from the EU to the US and imposes additional conditions for use of the standard contractual clauses. On 16 July 2020, the Court of Justice of the European Union (CJEU) invalidated the EU-US Privacy Shield, one of the key mechanisms for lawfully transferring personal data from the European Union...

  • 5 Considerations for European Retail and Consumer Product Companies Preparing for a High Yield Issuance

    For the retail and consumer product sector, the high yield market will likely remain an attractive source of capital.   The retail and consumer products sector has been deeply impacted by the COVID-19 pandemic, both due to physical constraints on brick-and-mortar stores and supply chains, and acceleration of existing trends favoring online purchasing and e-commerce.

  • COVID-19: EU State Aid Granted to the Aviation Sector

    Austria has reportedly agreed to grant to Austrian Airlines €600 million to secure its future operation as a network carrier in Vienna. The aid consists of a 90% state-guaranteed loan (€300 million) and a direct grant (€150 million). The package also foresees a €150 million contribution by the Lufthansa Group. The aid is conditional on a 10-year guarantee for Austrian Airlines to...

  • COVID-19: State Aid in the EU and UK

    While the COVID-19 outbreak is a severe public health emergency for citizens and societies, it also poses the risk of a serious downturn in the economy, affecting businesses, jobs, and households. In these exceptional circumstances, undertakings of all kinds may face a sudden shortage or even unavailability of liquidity, may suffer damages directly caused by the measures taken to tame...

  • Copyright, Competition, and Controversy: Press Publishers’ Right under the Copyright Directive

    French Competition Authority orders Google to negotiate remuneration with press publishers and news agencies under Article 15 of the Copyright Directive (as implemented in France). Background - In April 2019 the European Parliament officially adopted Directive (EU) 2019/790 on Copyright and Related Rights in the Digital Single Market (the Copyright Directive) The directive...

  • COVID-19: EU State Aid Granted to the Events, Entertainment & Media Sectors

    Federal measures specific targeted at the entertainment sector, including event organization: ..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). ..Extended reimbursement period: if the event cannot be organized at a later date,...

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