LATEST KEY DEVELOPMENTS

Competition & State Aid

  • European Commission extends anonymous whistleblower tool to cover all types of potential breaches of EU competition law
  • European Commission approves further schemes under COVID Temporary Crisis Framework
  • European Commission approves further schemes under Ukraine Temporary Crisis Framework

Trade / Export Controls

  • Council of the European Union adopts Regulation on a temporary market correction mechanism to protect against excessively high gas prices
  • Council of the European Union adopts Regulation on temporary measures enhancing solidarity through better coordination of gas purchases and reliable price benchmarks

Medicines and Medical Devices

  • European Commission publishes updated Rolling Plan on Implementation of Regulation on Health Technology Assessment
  • European Commission's Health Security Committee issues Opinion for a common EU approach in response to COVID-19 situation in China
  • Three Regulations forming the European Health Union enter into force
  • HaDEA issues call for proposals to support implementing relevant results of innovative public health research related to COVID-19 vaccination

Cybersecurity, Privacy & Data Protection

  • European Commission adopts third Report on EU Digital COVID Certificate,
  • European Data Protection Supervisor adopts Opinion on Proposal for Instant Credit Transfers Regulation,

COMPETITION & STATE AID

Competition

European Commission extends anonymous whistleblower tool to cover all types of potential breaches of EU competition law (see here)

On 9 January 2023, the European Commission announced the broadened scope of its anonymous antitrust whistleblower tool. By adding mergers and State Aid issues, the tool will now encompass all types of possible breaches of EU competition rules. The Commission expects that this full-scale approach will also create synergies across all areas of EU competition law.

The whistleblower tool, introduced in 2017, enables any person to anonymously report to the Commission cartels and other antitrust violations. With its expanded reach, persons may now also report potential mergerrelated infringements (e.g., gun jumping) and State aid violations.

To recall, the Commission encouraged use of the whistleblower tool to support its commitment during the COVID-19 pandemic to "closely and actively monitor ... [and] detect companies which take advantage of the current situation to breach EU antitrust law" (see also Jones Day COVID-19 Update No. 2 of 3 April 2020).

Since its launch, the tool has served to detect unlawful practices more quickly and strengthen existing cases to contribute to the success of the Commission's competition investigations. The whistleblowing tool receives some 100 messages each year.

Further details on the whistleblower tool are provide here.
State Aid

European Commission approves further schemes under COVID Temporary Crisis Framework (see here and here)

The Commission has adopted a significant number of State aid measures under Article 107(2)b, Article 107(3)b and under the State aid COVID Temporary Crisis Framework adopted in March 2020.

With certain exceptions, the Temporary Framework applied until 30 June 2022.* Among the latest schemes (since 20 December 2022):

  • €119.3 million in restructuring aid euros to allow the return to viability of the airline Air Austral; and €17.5 million in aid to compensate this company for damages suffered following the coronavirus pandemic.

* Exceptions notably include the possibility for Member States to (i) create direct incentives for private investments (until 31 December 2022) and (ii) provide solvency support measures (until 31 December 2023) aimed at easing access to equity finance for smaller companies

European Commission approves further schemes under Ukraine Temporary Crisis Framework (see here)

The Commission continues to approve additional measures under the State aid Temporary Crisis Framework for State Aid measures in the context of Russia's invasion of Ukraine.

To recall, in adopting this Crisis Framework, the Commission noted that the conflict had significantly impacted the energy market, and steep rises in energy prices had affected various economic sectors, including some of those particularly affected by the COVID-19 pandemic, such as transport and tourism. The conflict has also disrupted supply chains for both EU imports from Ukraine (in particular, cereals and vegetable oils) and EU exports to Ukraine.

The Commission earlier prolonged (until 31 December 2023 (instead of 31 December 2022)) and expanded the Crisis Framework (see Jones Day COVID-19 Update No. 90 of 28 October 2022).

Among the latest schemes under the Crisis Framework (since 20 December 2022):

  • Amendments to an existing Slovenian scheme to support companies in the context of Russia's war against Ukraine, including, e.g., (i) an overall budget increase by €230 million; and (ii) an extension of the period, in relation to which aid may be granted, until 31 December 2023.
  • €3 billion Polish scheme to support companies active in the Polish gas market in the context of Russia's war against Ukraine.
  • €49 billion German scheme to support the economy in the context of Russia's war against Ukraine.
  • Amendments to Irish scheme, including €200 million budget increase, to further support companies in the context of Russia's war against Ukraine.
  • Amendments to Italian scheme, including up to €23 billion budget increase, to support companies in context of Russia's war against Ukraine.
  • €6.3 billion German measure to recapitalize energy company SEFE GmbH in context of Russia's war against Ukraine.
  • €34.5 billion German measure to recapitalize energy company Uniper SE in context of Russia's war against Ukraine.
  • €1.1 billion Polish scheme to support particularly affected energy intensive companies in the context of Russia's war against Ukraine.
  • French aid scheme aimed at supporting wind power capacity in the context of the war waged by Russia against Ukraine.
  • Modification of a French aid scheme intended to support companies in the fishing sector in the context of the war led by Russia against Ukraine.
  • Modification of a French aid scheme aimed at supporting companies in the fishing sector in the context of the war led by Russia against Ukraine, including, e.g., (i) an extension of the scheme until 31 December 2023; and (ii) an increase in the budget of €16.7 million.
  • €50 million Slovak scheme to support the agricultural sector in the context of Russia's war against Ukraine.
  • €80 million Finnish recapitalization measure to support Meyer Turku Oy in the context of Russia's war against Ukraine.

Notably, the Crisis Framework complements the various possibilities for Member States to design measures in line with existing EU State aid rules. For instance, State aid measures under the Crisis Framework may be cumulated with aid granted under the COVID-19 Temporary Framework, provided that their respective cumulation rules are respected.

The Crisis Framework, applicable since 1 February 2022, will be in place until 31 December 2023. During its period of application, the Commission will keep the Framework under review in light of developments regarding the energy markets, other input markets, and the general economic situation. Prior to the Crisis Framework's end date, and in view of maintaining legal certainty, the Commission will assess whether it should be prolonged.

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