Insights

Last year, the European Union (EU) legislature adopted a far-reaching regulation aimed at tackling the distortive effects on EU markets of financial support provided by non-EU countries to undertakings active in the EU (Foreign Subsidies Regulation or FSR). However, the FSR left many procedural details to be hammered out by the European Commission (EC) in an Implementing Regulation, to be adopted before the FSR itself starts to apply in July 2023. On 6 February 2023, the EC launched a much-anticipated public consultation regarding its draft Implementing Regulation, including two annexes containing notification forms for concentrations and public procurements. Stakeholders have until 6 March 2023 to submit comments.

On October 28, 2022, the European Commission adopted a second amendment to its Temporary Framework for State aid measures to support the economy following Russia’s aggression against Ukraine (“TF”). The TF was set to expire on December 31, 2022. As the war in Ukraine continues to affect companies in the EU, the Commission has extended its application until December 31, 2023. In addition, the second amendment to the TF raises the ceilings for limited amounts of aid and provides for additional flexibility for liquidity support to energy utilities for their trading activities and for companies affected by rising energy costs. It also introduces means to support electricity demand reduction, in line with the recent Regulation (EU) 2022/1854 on an emergency intervention to address high energy prices. The changes reflect the growing concern of the EU institutions about the security of gas and electricity supply in Europe.

On 08 September 2022, the Russian Government issued a Russian Presidential decree which introduced a new vetting procedure regulating situations where “unfriendly” persons take part in transactions involving shareholdings in Russian limited liability companies.  These transactions are now subject to an approval decision by the Government Commission on Control over Foreign Investments before they can be completed.  This is the latest in a growing line of countermeasures being introduced by the Russian President to try to keep liquid assets within Russia and bolster the country’s financial markets.

As we wrote in an earlier client alert, the European Commission proposed the FSR in May 2021 to close a regulatory gap and level the playing field between undertakings receiving subsidies from EU Member States, which are subject to strict state aid rules, and recipients of third-country subsidies, which so far escaped scrutiny. The proposal followed a public consultation on the European Commission’s June 2020 White Paper on Foreign Subsidies.

The proposed cooperation agreement (“the proposal”), which still has to be approved by the various Belgian parliaments, creates a mechanism to coordinate the exercise of the competences of the federal State and the federated entities in the area of FDI screening. It defines uniform notification thresholds and sets up the ISC as a one-stop-shop for all notifications of investments exceeding those thresholds.

Businesses distributing goods and services in the EU often rely on the Vertical Block Exemption Regulation (VBER) for legal certainty. The VBER and the accompanying guidelines set out the conditions under which distribution agreements are presumed to comply with EU competition law. To be covered by the VBER, the parties’ market shares may not exceed 30% and the agreement may not include so-called hardcore restrictions. Above the market share threshold, the parties will need to self- assess their agreement based on the guidelines. Over the past few years, the Commission has been working with stakeholders to assess, update and amend the existing rules to take account of market developments, including the emergence of online platforms and e-commerce (see also our Client Alert of August 24, 2021). The most important changes can be summarized as follows:

On March 24, 2022, the European Union (EU) co-legislators (the European Parliament and the Council) reached political agreement on the final provisions of the Digital Markets Act (DMA). The DMA aims at ensuring fair and contestable markets in the digital sector by imposing specific regulatory obligations on so-called “gatekeepers,” i.e., major digital platforms with a powerful and entrenched position which act as important gateways for businesses to reach end users. The European Commission (EC) will act as the central enforcer of the DMA. It will have extensive investigative powers and be able to impose hefty fines as well as behavioral and structural remedies (including the breaking up of companies). As an instrument of ex ante regulation, the DMA is designed to complement (not replace) the ex post enforcement of competition law, which is often viewed as too slow to effectively rein in the market power of “Big Tech” players.

Two recent initiatives have been adopted by EU competition authorities in response to the current crisis in Ukraine. On March 23, 2022, the European Commission adopted a new Temporary Crisis Framework for State aid measures to support the EU economy following Russia’s attack on Ukraine. The goal is to allow EU countries to support companies and sectors that are severely affected by the economic impact of the war or the sanctions imposed against Russia. The Framework will be in place until December 31, 2022. This initiative comes shortly after the European Competition Network issued a Joint Statement, allowing companies to cooperate to address severe disruptions caused by the Ukraine crisis.

On March 7, 2022, a law amending the Belgian Competition Act and transposing the ECN+ Directive (EU Directive 2019/1) was published. Notable changes include the introduction of merger filing fees (EUR 52,350 for the normal procedure and EUR 17,450 for simplified notifications), fines for violating the notification obligation, and new provisions concerning cooperation with other national competition authorities, judicial remedies, dawn raids and leniency. The amendments enter into force on March 17, 2022.

On June 29, 2021, our annual EU Competition Law Conference took place (virtually this year), co-hosted by Crowell & Moring and King’s College London. During a panel discussion followed by a fireside chat, the speakers discussed how proposed and existing reforms in competition law across the globe are being or can be practically implemented. A video recording of the panel discussion and fireside chat is available here.

On Thursday this week (October 6), the European Commission (the Commission or EC) will present the results of the Preliminary Report (the “Report”) on the E-commerce Sector Inquiry released on September 15 during a public event in Brussels. The sector inquiry was launched in May 2015, under EU competition rules (Article 101 of the Treaty on the Functioning of the EU and Article 17 of Regulation 1/2003), but forms part of the EU’s Digital Single Market Strategy to develop a better understanding the competitive effects of electronic commerce of consumer goods and digital content in the EU.

The German government has announced that it intends to extend German merger control thresholds to take account of transactional value. The change is intended to allow the German Federal Cartel Office (FCO) to increase its scrutiny of mergers and acquisitions in digital online markets. The change is to be introduced as part of the ninth revision of the German Act on Restraints of Competition (ARC). A draft of the changes is expected in the course of this year.

On May 6, 2015, the European Commission announced the launch of an inquiry into the e-commerce sector that will seek to identify potential antitrust concerns in European e-commerce markets. 

The Federal Trade Commission announced today that it would increase the jurisdictional thresholds applicable to both the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") and Section 8 of the Clayton Act. These dollar thresholds are indexed annually based on changes in the U.S. gross national product.