EU Emergency Response Update – Key Policy & Regulatory Developments No. 112

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This regular alert covers key regulatory developments related to EU emergency responses, including in particular to Russia's war of aggression against Ukraine...
European Union Antitrust/Competition Law
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This regular alert covers key regulatory developments related to EU emergency responses, including in particular to Russia's war of aggression against Ukraine, COVID-19, and cyber threats. It does not purport to provide an exhaustive overview of developments.

This regular update expands from the previous COVID-19 Key EU Developments – Policy & Regulatory Updates (last issue No. 99).

LATEST KEY DEVELOPMENTS

Competition & State Aid

  • European Commission adopts revised Market Definition Notice for competition cases
  • European Commission publishes Update on Competition Enforcement in Pharmaceutical Sector (2018-2022)
  • European Commission approves further schemes under Temporary Crisis and Transition Framework to support economy in context of Russia's invasion of Ukraine and accelerating green transition and reducing fuel dependencies

Trade / Export Controls

  • Second year of Russia's war against Ukraine – Remarks from G7
  • Council of the European Union adopts a Decision and a Regulation on immobilized Russian assets
  • Council of the European Union expands sanctions against Russia
  • European Commission proposes new initiatives to strengthen economic security

Medicines and Medical Devices

  • European Commission proposes Council Recommendation on Vaccine-Preventable Cancers
  • European Parliament and Council reach provisional political agreement on proposed revised Urban Wastewater Treatment Directive
  • European Commission publishes Update on Competition Enforcement in Pharmaceutical Sector (2018-2022)

Cybersecurity, Privacy & Data Protection

  • European Commission adopts first European cybersecurity certification scheme
  • European Commission adopts Communication on Artificial Intelligence in the European Commission (AI@EC)
  • EDPB publishes latest One-Stop-Shop case digest of decisions from EDPB's public register
COMPETITION & STATE AID
Competition
European Commission adopts revised Market Definition Notice for competition cases (see here)

On 8 February 2024, the Commission adopted the revised Market Definition Notice (Communication from the Commission – Commission Notice on the definition of the relevant market for the purposes of Union competition law).

This is the first revision of the 1997 Market Definition Notice, which provides guidance on the principles and best practices on how the Commission applies the concept of relevant product and geographic market in enforcing EU competition law.

The revised Notice is also published, in part, in response to some stakeholders' views that mergers between European companies in certain sectors have been challenged as leading to allegedly too-high concentration levels within Europe, whereas the merging parties have argued that scale and size are necessary to compete globally.

The revision sought to take into account, in particular,:

  • Significant market developments over the years (e.g., digitalization, globalization, and new ways of offering goods and services); and
  • Competition policy's role in contributing to the EU's green and digital transitions and resilience of the single market by safeguarding wellfunctioning markets and addressing market failures, e.g., by:
    • Contributing to increasing the resilience of the EU economy and preventing excessive dependency by enabling strong and diversified supply chains, and
    • Complementing the EU's regulatory framework on environmental sustainability by taking into account sustainability factors to the extent relevant to the competition assessment, including as part of market definition.

The revised Notice seeks to boost guidance, transparency and legal certainty for businesses to facilitate compliance, including key features such as:

  • More accessible guidance, providing detailed structure and concrete illustrations of practical applications of market definition concepts.
  • Recognition of the importance of non-price parameters for market definition, including product innovation, quality, reliable supply and sustainability, e.g.:
    • Resource efficiency and durability;
    • Security and privacy protection;
    • Availability, including in terms of lead-time, resilience of supply chains, reliability of supply, and transport costs.
  • Specific guidance on applying market definition concepts in particular circumstances, e.g.:
    • Digital markets, such as with respect to digital "ecosystems", for instance, concerning products built around a mobile operating system.
    • Innovation-intensive industries, where companies compete on innovation, including through developing new products.
  • Clarifications on dynamic and forward-looking assessments especially in markets undergoing structural transitions, such as regulatory or technological changes.
  • Expanded guidance on geographic market definition focusing on factors that can justify defining markets as global, EEA-wide, national, or local, and on the role of imports when defining the relevant geographic market.

The revised Notice states that the Commission will continue to develop the concept of relevant product and geographic market in light of its case practice, market developments and competition dynamics, evolutions in best practices in market definition, and case law of the EU courts.

The Commission's Q&A on the revised Notice provides further details (see here).


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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

EU Emergency Response Update – Key Policy & Regulatory Developments No. 112

European Union Antitrust/Competition Law

Contributor

Jones Day is a global law firm with more than 2,500 lawyers across five continents. The Firm is distinguished by a singular tradition of client service; the mutual commitment to, and the seamless collaboration of, a true partnership; formidable legal talent across multiple disciplines and jurisdictions; and shared professional values that focus on client needs.
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