EU Law and Regulatory

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On 30 May 2022, the European Union (“EU”) adopted the revised Regulation on guidelines for trans-European energy infrastructure (No. 2022/869) (the “TEN-E Regulation 2022”), which replaces the previous rules laid down in Regulation No. 347/2013 (the “TEN-E Regulation 2013”) that aimed to improve security of supply, market integration, competition and sustainability in the energy sector. The TEN-E Regulation 2022 seeks to better support the modernisation of Europe’s cross-border energy infrastructures and the EU Green Deal objectives.

The three most important things you need to know about the TEN-E Regulation 2022:

  • Projects may qualify as Projects of Common Interest (“PCI”) and be selected on an EU list if (i) they fall within the identified priority corridors and (ii) help achieve EU’s overall energy and climate policy objectives in terms of security of supply and decarbonisation. The TEN-E Regulation 2022 updates its priority corridors to address the EU Green Deal objectives, while extending their scope to include projects connecting the EU with third countries, namely Projects of Mutual Interest (“PMI”).
  • PCIs and PMIs on the EU list must be given priority status to ensure rapid administrative and judicial treatment.
  • PCIs and PMIs will be eligible for EU financial assistance. Member States will also be able to grant financial support subject to State aid rules.

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Continue Reading The European Union adopted new rules for the Trans-European Networks for Energy

Last month, the U.S.-EU Trade and Technology Council (TTC) met in Paris-Saclay for the second time since its launch in June 2021. (The first ministerial took place in Pittsburgh in September. France hosted this session as holder of the rotating presidency of the Council of the EU.) The meeting was co-chaired by Secretary of State Blinken, Secretary of Commerce Raimondo, and U.S. Trade Representative Tai, and European Commission Executive Vice Presidents Vestager and Dombrovskis. European Commissioner Breton also joined the discussions and the French ministers for foreign affairs, economy, and trade (Le Drian, Le Maire, and Riester) hosted the opening dinner.

The TTC is a new model of economic integration through regulatory coordination. Although both sides reserve their “regulatory autonomy,” they have also invested significant political capital, time, and effort into this process. The TTC spans broad policy areas including tech standards, climate, supply chains, export controls, and investment screening. It operates through ten working groups, which meet at staff working levels and seek input from outside stakeholders. For instance, the European Commission sponsors a “Trade and Technology Dialogue” facility to conduct outreach to the private sector and civil society. Through this technical work, the TTC’s aim is to shape the “rules of the road” for the global economy to favor liberal democracies, leveraging the transatlantic community’s half of global GDP. The ministerials set the themes and political direction for the working groups.

Against the backdrop of Russia’s ongoing aggression against Ukraine, the U.S. and EU noted that the TTC has become a “central pillar” of the transatlantic partnership, “indispensable” in facilitating coordination on sanctions and export controls. It will serve as a forum to monitor and discuss the Russia sanctions and may coordinate their eventual removal. Indeed, the TTC has arguably become more of a geopolitical tool than originally intended. Its 48-page joint statement reflects the breadth and depth of the underlying discussions and signals various future policy directions.…

Continue Reading U.S.-EU Trade and Tech Council: Paris Takeaways and Next Steps

On 22 March 2022, the European Court of Justice (“ECJ”) issued two separate preliminary rulings – Bpost and Nordzucker – which clarify how the protection against double jeopardy (“non bis in idem principle”) should be applied in instances where an identical competition law infringement is sanctioned in parallel investigations, either by different regulatory authorities of the same EU Member State or by multiple national competition authorities (“NCAs”) from different EU Member States.

The key takeaways from the two judgments are as follows:

  • the non bis in idem principle applies to competition law due to the criminal aspect embedded in the relevant administrative penalties;
  • the non bis in idem principle only applies if the facts are identical – a mere reference to a fact in a decision is not sufficient to demonstrate that an authority has ruled on that element;
  • different national authorities can impose fines for an identical infringement if the legislation on which they rely pursues complementary objectives;
  • the non bis in idem principle also applies to situations where an NCA has granted leniency to a company such that only a declaratory finding infringement (without fine) can be made.

Background

In Bpost, the ECJ  examined whether the Belgian NCA could impose a fine on Bpost for an abuse of a dominant position (through the application of a rebate system) even though Bpost had already been fined for the same rebate system by the Belgian postal regulator.…

Continue Reading European Court of Justice clarifies scope of protection against double jeopardy in successive antitrust investigations

In Enel, a judgment of 12 May 2022 (C-377/20), the Court of Justice of the European Union (“CJEU”) complemented the framework for analysing exclusionary abuses developed in earlier case-law, notably where it applies to a context of market liberalisation:

  • Abuse: The concept of “abuse” relates to conduct that departs from “competition on the merits”. Conduct that an equally efficient competitor can replicate is generally not abusive (“equally efficient competitor test”).
  • Anti-competitive effects: While it is not necessary to demonstrate actual anti-competitive effects or the company’s intention to carry out an exclusionary strategy, such factors are relevant in assessing whether the conduct is abusive or not.
  • Harm: Conduct that harms consumers indirectly as a result of its effect on the structure of the market is per se abusive; it is not required to demonstrate an actual or potential direct harm to consumers.
  • Objective justification: The prohibition set out in Article 102 TFEU does not prohibit   conduct that is objectively justified and proportionate, or where the behaviour is counterbalanced or outweighed by pro-consumer efficiency-benefits.

The judgment largely endorses the opinion of Advocate General Rantos (see our blog post), but adds some important nuance.…

Continue Reading The CJEU sets out an analytic framework on exclusionary abuses in the context of market liberalisation

On 4 May 2022, the Council of the EU (the “Council”) formally adopted its position on the proposal of the European Commission (the “Commission”) for a Regulation on foreign subsidies distorting the internal market (the “Foreign Subsidies Regulation”) (see our alert on the proposal). On the same day, the European Parliament (the “Parliament”) also adopted its position on the Foreign Subsidies Regulation (see our blog post). The Council’s adoption confirms the Commission’s initial proposal of the regulation while seeking to limit the Commission’s power to investigate foreign subsidies.

The three most important things for you to know about the recent amendments to the Foreign Subsidies Regulation:

  • The thresholds above which companies are obliged to inform the Commission about their foreign subsidies have been increased, reducing the scope of the new rules to a narrower set of acquisitions, mergers and public procurements. In addition, foreign subsidies of less than EUR 5 million would not be subject to notification and foreign subsidies of less than EUR 200,000 would escape any scrutiny.  
  • The time period in which the Commission has to investigate foreign subsidies in large public procurements has been reduced. Furthermore, the “retroactive” application of the Foreign Subsidy Regulation is limited to foreign subsidies granted in the five years prior to the application of the regulation.
  • The application of some concepts (e.g., the power to request prior notification) will be subject to further guidance by the Commission.

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Continue Reading The Council of the EU endorses the European Commission’s proposal on the Foreign Subsidies Regulation

            On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics.  Sam Jungyun Choi, Associate in Covington’s Technology Regulatory Group, and Anna Oberschelp, Associate in Covington’s Data Privacy & Cybersecurity Practice Group, discussed global regulatory trends that affect robotics, highlights of which are captured here.  A recording of the forum is available here until May 31, 2022.

Trends on Regulating Artificial Intelligence

            According to the Organization for Economic Cooperation and Development  Artificial Intelligence Policy Observatory (“OECD”), since 2017, at least 60 countries have adopted some form of AI policy, a torrent of government activity that nearly matches the pace of modern AI adoption.  Countries around the world are establishing governmental and intergovernmental strategies and initiatives to guide the development of AI.  These AI initiatives include: (1) AI regulation or policy; (2) AI enablers (e.g., research and public awareness); and (3) financial support (e.g., procurement programs for AI R&D).  The anticipated introduction of AI regulations raises concerns about looming challenges for international cooperation.…

Continue Reading Robotics Spotlight: Global Regulatory Trends Affecting Robotics

In the early hours of Friday, 13 May, the European Parliament and the Council of the EU reached provisional political agreement on a new framework EU cybersecurity law, known as “NIS2”. This new law, which will replace the existing NIS Directive (which was agreed around the same time as GDPR, see here) aims to strengthen EU-wide cybersecurity protection across a broader range of sectors, including the pharmaceutical sector, medical device manufacturing, and the food sector.

We set out background on NIS2 in prior blog posts (e.g., in relation to the original proposal in late 2020, see here, and more recently when the Council of the EU adopted an updated version in December 2021). Whilst we are still waiting for the provisionally agreed text to be released, a few points are worth mentioning from this latest agreement:

  • Clearer delineation of scope. NIS2 will only apply to entities that meet certain size thresholds in the prescribed sectors, namely
    • “essential entities” meaning those operating in the following sectors: energy; transport; banking; financial market infrastructures; health (including the manufacture of pharmaceutical products); drinking water; waste water; digital infrastructure (internet exchange points; DNS providers; TLD name registries; cloud computing service providers; data centre service providers; content delivery networks; trust service providers; and public electronic communications networks and electronic communications services); public administration; and space; and
    • “important entities”, meaning those operating in the following sectors: postal and courier services; waste management; chemicals; food; manufacturing of medical devices, computers and electronics, machinery equipment, motor vehicles; and digital providers (online market places, online search engines, and social networking service platforms).

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Continue Reading Political Agreement Reached on New EU Horizontal Cybersecurity Directive

On 1 March 2022, the European Commission (“Commission”) published drafts of the revised Research & Development Block Exemption Regulation (“R&D BER”) and Specialization Block Exemption Regulation (“Specialisation BER”, together the “Horizontal Block Exemption Regulations” or “HBERs”) as well as the accompanying Horizontal Guidelines for stakeholder comments.  The current HBERs are due…

On 4 May 2022,  the European Parliament (the “Parliament”) adopted its position on the proposal of the European Commission (the “Commission”) for a Regulation on foreign subsidies distorting the internal market (the “Foreign Subsidies Regulation”) (see our alert on the proposal). It confirms the Commission’s powers to investigate and remedy the potential negative effects of…

The German Conference of Independent Supervisory Authorities (“DSK”) published on March 23, 2022 a statement on scientific research and data protection (see here, in German).  The DSK published the statement in response to the German Government’s initiative on a general law on research data as part of its Open Data Strategy, announced…