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Annual European Competition Review 2020

by Jacques Buhart, Hendrik Viaene and McDermott Will & Emery | Feb 2, 2021 | Brussels Developments, Cartel Enforcement, EC Developments, EU Developments, Monopolization/Abuse of Dominance

McDermott’s Annual European Competition Review summarizes significant developments in the field of European competition law. 2020 saw several important legislative and policy developments, including EC guidance on foreign direct investment, the promulgation of a temporary framework for antitrust cooperation in the context of COVID-19 and the issuance of a rare competition law comfort letter thereunder. Furthermore, in addition to a number of interesting EC decisions, key judgments were handed down by the EU Courts, including in relation to the conditions for assessing “by object” infringements, the notion of “gun jumping” and jurisdiction under the EU merger regulation and tax planning measures under EU State aid rules. All these new rules and judicial decisions may be relevant for your company and your day-to-day practice.

In our super-connected age, because we are inundated with information from numerous sources it can be difficult to select what is really relevant to one’s business. The purpose of this review is therefore to help general counsel and their teams to be aware of, and to conduct their business in line with, essential EU competition law developments.

This review was prepared by McDermott’s European Competition Team in Brussels. Throughout 2020 they have monitored legal developments and drafted the summary reports.

Click here to read the full Review.

COVID-19 and EU Competition Proceedings: Extraordinary Times Call for Extraordinary Measures

by Jacques Buhart | Mar 23, 2020 | EC Developments, EU Developments, Mergers & Acquisitions

In the midst of the ongoing global effort to mitigate the effects of COVID-19, the Directorate-General for Competition (DG Competition) of the European Commission (EC) and the EU courts are taking measures to prevent the spread of the virus among individuals whilst at the same time seeking to ensure that the EU economy remains as stable as possible. The situation remains highly fluid for the foreseeable future. Companies are therefore urged to stay abreast of the continually changing measures being taken.

WHAT HAPPENED

EC Staff working on “non-essential” projects are working remotely from home. However, officials who hold “critical” functions, such as the Commissioner, the Director-General and Heads of Unit, will generally be present at DG Competition, although working on a shift basis. In-person meetings will be replaced by video conferences going forward. DG Competition staff who are dealing with the provision of State aid exemptions during the crisis are being considered “critical”.

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Annual European Competition Review 2019

by McDermott Will & Emery | Feb 3, 2020 | Brussels Developments, Cartel Enforcement, Consumer Protection/Privacy, EC Developments, EU Developments, French Developments, German Developments, Healthcare Antitrust, IP Antitrust, Mergers & Acquisitions, Monopolization/Abuse of Dominance

McDermott’s Annual European Competition Review summarizes key developments in European competition rules. During the previous year, several new regulations, notices and guidelines were issued by the European Commission. There were also many interesting cases decided by the General Court and the Court of Justice of the European Union. All these new rules and judicial decisions may be relevant for your company and your day-to-day practice.

In our super-connected age, we can be inundated by information from numerous sources and it is difficult to select what is really relevant to one’s business. The purpose of this review is to help general counsel and their teams to be aware of the essential updates.

This review was prepared by the Firm’s European Competition Team in Brussels and Paris. Throughout 2019 they have monitored legal developments and drafted the summary reports.

Access the full report.

EU Competition Commissioner Vestager Nominated for a Second Term – a Tale of Two Hats

by McDermott Will & Emery | Sep 12, 2019 | EC Developments, EU Developments, IP Antitrust, Monopolization/Abuse of Dominance

What Happened:

On 10 September 2019, European Commission President-elect Ursula von der Leyen nominated Margrethe Vestager as Competition Commissioner for a second consecutive term. As part of a structural shake-up of the Commission, involving the institution of eight Vice-Presidents, three of whom will be “Executive Vice Presidents”, she will additionally serve as “Executive Vice President for a Europe fit for the Digital Age”. As head of the competition portfolio Ms. Vestager will be supported by DG-Comp. As chief coordinator of the digital portfolio she will be supported by the Commission’s Secretariat-General. With respect to the latter role in particular, Ms. Vestager will be charged with ensuring that “Europe fully grasps the potential of the digital age and strengthens its industry and innovation capacity” and will be responsible for specific initiatives including new laws governing digital platforms and a potential tax on digital companies. Subject to European Parliament consent, which is expected to be given, she will carry out this dual rule until 2024.

What This Means:

Ms. Vestager’s mission as Competition Commissioner will be based on the following priority actions:

Strengthening competition enforcement in all sectors: this tenet focuses on improving case detection, expediting investigations and facilitating cooperation with and between EU national competition authorities, including global cooperation among competition authorities.
Evaluate and review Europe’s competition rules: this will cover antitrust regulations that are due to expire during her mandate (e.g. the Verticals Block Exemption Regulation (Reg. 330/2010), the ongoing review of the merger control rules and the review of State aid rules and guidance.
Use of the sector inquiry instrument in new and emerging markets: in the context of new and emerging markets, sector inquiries will be carried out in markets that the Commission believes are not working as well as they should, and that breaches of the antitrust rules might be a contributory factor. Ms. Vestager already presided over the Commission’s sector inquiry into the e-commerce sector in 2015.
Develop tools and policies to address the distortive effects linked to state-owned companies or subsidized companies from outside the EU but operating in the EU.

While it is somewhat unusual for a Competition Commissioner to be re-elected for a second term, her re-nomination serves as a testament to widespread appreciation for her unwavering commitment to ensuring consumer welfare. That being said, and against the Commissioner’s mandate to secure enhanced global cooperation amongst competition authorities, the move will likely raise eyebrows on Capitol Hill. This is principally because of Ms. Vestager’s alleged crusade against many of the biggest U.S. tech companies, a path likely to be pursued during the Commissioner’s second term in office. Indeed, her mandate over rule-making related to the digital economy could also give her increased influence over global tech regulation. Furthermore, her mission appears to be heavily influenced by the fall-out of the failed Alstom/Siemens railway merger. It will be interesting to see, for example, what role, if any, industrial policy will play under the EU Merger Regulation going forward. With Ms. Vestager’s focus [...]

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Annual EU Competition Review 2018

by McDermott Will & Emery | Feb 21, 2019 | Cartel Enforcement, Distribution/Franchising, EC Developments, EU Developments, French Developments, Mergers & Acquisitions, Monopolization/Abuse of Dominance

McDermott’s Annual EU Competition Review summarizes key developments in EU competition rules. During the previous year, several new regulations, notices and guidelines were issued by the European Commission. There were also many interesting cases decided by the General Court and the Court of Justice of the European Union. All these new rules and judicial decisions may be relevant for your company and your day-to-day practice.

This review was prepared by the Firm’s European Competition Team in Brussels, Paris and Germany.

Access the full report.

McDermott EU Competition Annual Review 2016

by Jacques Buhart | Feb 2, 2017 | Cartel Enforcement, EC Developments, EU Developments, French Developments, German Developments, Italian Developments, Mergers & Acquisitions

It is difficult for General Counsel and their teams to monitor all new developments adequately. With the growth of the Internet and the daily updates to EU competition rules, everyone receives and has access to masses of information, but it is difficult to select that which is really relevant to one’s business.

McDermott’s EU Competition team across Brussels, France, Germany and Italy has authored the EU Competition Annual Review 2016 to help General Counsel and their teams to focus on the essential updates that they should be aware of.

This Special Report summarizes recent developments in EU competition rules during the year 2016 where several new regulations, notices and guidelines were issued by the European Commission and many interesting cases were decided by the General Court and the EU Court of Justice.

All these new rules and judicial decisions can be relevant for international companies operating in the EU. Indeed, in addition to the daily update, this booklet provides an overview of the main recent developments in EU competition rules and can be kept as a ready reference when dealing with complex issues of EU competition law.

Read the full report.

New EU Competition Commissioner’s Priorities For 2014-2019: Hearing Before The European Parliament

by Jacques Buhart and McDermott Will & Emery | Oct 3, 2014 | EC Developments, EU Developments

Margrethe Vestager, former Deputy Prime Minister of Denmark, is designated to become the next European Union Competition Commissioner in November 2014. In a three hour hearing before the European Parliament (EP) last night (2 October), Ms Vestager answered the EP’s questions and revealed a number of issues that she would like to focus on during her five year term of office. These priorities include vigorous cartel enforcement and—at least initially—assessment of whether or not certain tax arrangements in a small number of EU Member States infringe State aid rules.

Read the full article.

European Commission Uses EU State Aid Rules Against Aggressive Tax Planning by Multinational Companies

by Irina Denisova | Jun 11, 2014 | EC Developments

by Martina Maier and Philipp Werner (with contribution from Katharina Dietz)

The European Commission (Commission) took the first concrete action towards using EU State aid rules against aggressive tax planning by multinational companies by opening formal investigations against Ireland (Apple), Luxembourg (Fiat Finance and Trade) and the Netherlands (Starbucks). The Commission has concerns that these companies may have benefited from a selective advantage in the form of tax rulings by tax authorities that confer on them a preferential calculation of the taxable basis. The Commission has already announced that it investigates further cases of alleged State aid in the form of tax rulings in at least six EU Member States (including France and the UK) in the upcoming months.

Please click here to read the full article

Revised GBER Reduces Need For Commission Prior Approval of State Aid But Some Conditions Stricter Than Before

by Emily Townsend | May 22, 2014 | EC Developments

The European Commission (Commission) has adopted new rules that exempt public support given to companies by EU Member States, including regional and local authorities, from the requirement of prior notification to, and approval by, the Commission. These new rules, which revise the General Block Exemption Regulation (GBER) significantly extend the scope of support that can be granted by Member States without the Commission’s involvement. Some substantive conditions for exemption will, however, be stricter than before. Public authorities and aid beneficiaries are well advised to take the new opportunities and challenges introduced by the revised GBER into account when designing their aid measures.

Please click here to read the full article.

European Commission Targets Spanish Football Clubs including Real Madrid and Barcelona for State Aid Investigations

by Emily Townsend | Dec 19, 2013 | EC Developments

The European Commission (Commission), on 18 December 2013, opened three formal State aid investigations into public support measures for major Spanish football clubs. The Commission alleges that the clubs under investigation have benefitted from State aid that cannot be authorised. The clubs, which include Real Madrid and Barcelona, are therefore exposed to the risk of the alleged benefit being recovered. Professional sports clubs in other EU Member States should also be aware that the Commission is starting to enforce the State aid rules in the sport sector.

The European Commission (Commission), on 18 December 2013, opened three formal State aid investigations into the public financing of some of the most well-known Spanish football clubs.

The first investigation concerns possible tax privileges for Real Madrid CF, Barcelona CF, Athletic Club Bilbao and Club Atlético Osasuna. These four clubs are exempted from the general obligation on professional football clubs to convert into sport limited companies. The effect of the exemption is that these clubs enjoy a preferential corporate tax rate of 25 per cent instead of the 30 per cent applicable to sport limited companies.

The second investigation will assess whether or not a land transfer between the City of Madrid and Real Madrid CF involved any State aid in favour of the club. In the third investigation, the Commission will examine the compliance with EU State aid rules of guarantees given by the State-owned Valencia Institute of Finance for loans that were used to finance the three Valencia clubs Valencia CF, Hercules CF and Elche CF, while those clubs were seemingly undergoing financial difficulties.

The Commission is empowered to investigate public support measures going back 10 years under general EU State aid rules. Should the Commission come to the conclusion that the measures in favour of the Spanish football clubs infringe EU State aid rules, it can order Spain to recover the State aid from the clubs and the relevant public support measures could no longer be applied.

Background

Unlike amateur sport, professional sport is an economic activity to which the general EU State aid rules apply. Although the economic nature of professional sport has been recognised in the past, the Commission has only recently picked up on potential EU State aid in the sport sector.

The Commission sent an information request to all EU Member States in October 2012, asking them to provide all relevant information regarding public financing of the professional football clubs in their country. The Commission subsequently launched an investigation in the Netherlands (see McDermott website here) (https://www.mwe.com/Commissions-Launches-First-State-Aid-Investigations-Into-Football-Clubs-04-02-2013/?PublicationTypes=d9093adb-e95d-4f19-819a-f0bb5170ab6d) in March 2013 concerning, amongst others, PSV Eindhoven.

Implications

Professional football clubs in other EU Member States should watch the Spanish and Dutch cases with interest as the Commission is starting to enforce the State aid rules in this sector and it is likely that professional football clubs in other Member States will also become subject to an investigation.

Since the underlying legal and economic concepts of the Commission’s probe into the financing of football clubs are not [...]

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