European Union:
COVID-19 Key EU Developments, Policy & Regulatory Update No. 68
06 December 2021
Jones Day
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This regular alert covers key regulatory EU developments related
to the COVID-19 situation. It does not purport to provide an
exhaustive overview of developments and contains no analysis or
opinion.
LATEST KEY DEVELOPMENTS
Competition & State Aid
- European Commission adopts Communication on a Competition
Policy Fit for New Challenges
- European Commission adopts sixth amendment of State aid
Temporary Framework
- European Commission approves amendments to €25 billion
Pan-European Guarantee Fund
- European Commission approves new and amended Member State
measures to support the economy
Trade / Export Controls
- European Commission publishes 3rd Raw Materials Scoreboard
Medicines and Medical Devices
- EMA reviews data on COVID-19 treatment, molnupiravir, to
support decisions on early use by national authorities
- EMA evaluates application for marketing authorization for
COVID-19 medicine Xevudy
- EMA evaluates application for conditional marketing
authorization for COVID-19 vaccine Nuvaxovid
- EMA reviews data on COVID-19 treatment, Paxlovid, to support
decisions on early use by national authorities
Cybersecurity, Privacy & Data
Protection
- European Commission issues Communication on a Competition
Policy Fit for New Challenges
- Council of Europe adopts Second Additional Protocol to the
Convention on Cybercrime on Enhanced Cooperation and the Disclosure
of Evidence
COMPETITION & STATE AID
|
European Commission adopts Communication on a
Competition Policy Fit for New Challenges (see
here)
|
On 18 November 2021, the European Commission adopted a
Communication on a Competition Policy Fit for New Challenges,
focusing on supporting Europe's recovery, the green and digital
transitions, and a resilient Single Market.
The Communication argues that competition policy was key to the
EU's crisis response toolbox in swiftly acting against the
COVID-19 outbreak, including notably:
- The State Aid Temporary Framework, adopted March 2020 (see
here) to support the economy in the context of the pandemic by
enabling the rapid adoption of certain aid measures by Member
States; and
- The Antitrust Temporary Framework (adopted April 2020, see
here), which sought to provide guidance and legal certainty to
companies, e.g. when cooperating to sustain supply chains amidst
border closures or to tackle shortages of medicines, medical
equipment, or bottlenecks in vaccine production. Based on the
COVID-19 evolution, the Commission may review the Antitrust
Temporary Framework, which will remain applicable until the
Commission withdraws it (once it considers that the underlying
exceptional circumstances are no longer present).
The Communication addresses, in particular:
- The progressive phase-out of crisis measures under the
above-referred State aid Temporary Framework, as accompanied by new
measures to ramp up private investment (see below for further
details); and
- The comprehensive current review of competition policy and
enforcement in light of the EU's ambitions to achieve a green
and digital transition in a resilient Single Market. This spans
over 20 sets of competition rules and guidelines, across all
competition instruments (merger, antitrust and State aid control).
Among these:
- The rules on pan-European Important Projects of Common European
Interest (IPCEI) seek to enable Member States and industry to
jointly invest in ambitious pan-European projects in a transparent
and inclusive manner, where the market alone appears unable to
deliver and particularly where the risks are deemed as too large
for a single Member State or company to assume. The Commission is
particularly focusing on projects responding to key green and
digital priorities (e.g. hydrogen, cloud, health and
microelectronics).
The Commission views the current IPCEI framework as working well,
so the rules will maintain their existing scope, while making
certain targeted changes. In this respect, the announced IPCEI
State aid Communication (expected by end-2021) will aim at, e.g.
further facilitating the participation of small and medium-sized
enterprises and clarifying criteria to pool national and EU
resources.
- To build resilience in the EU semiconductors sector, State aid
rules seek to provide various possibilities to address current
acute global shortages, including the following initiatives:
- Preparing a second IPCEI concerning semiconductors, following
the first IPCEI approved by the Commission on 18 December
2018;
- Streamlining State aid rules under a recent amendment to the
GBER (General Block Exemption Regulation), applicable to national
funding for projects or financial instruments falling under Horizon
Europe (EU's central research and innovation funding programme)
and InvestEU (to mobilize public and private investment to meet
EUpolicy objectives). The amendment, applicable since 1 August
2021, intends to foster synergies between national and EU-funding
policies to enhance the EU's competitiveness, including in the
field of semiconductors.
- Potential support aimed at addressing perceived funding gaps,
in view of creating European first-of-a-kind facilities in the
semiconductor ecosystem. The forthcoming European Chips Act,
expected in the first half of 2022, would aim at strengthening
innovation, production capacity, as well as security of supply
through a framework for international cooperation and partnership.
The proposed Act would also aim at coordinating EU and national
investment along the value chain.
Other measures set out in the Communication also reflect
Europe's ambitions for a green and digital transition, e.g. the
forthcoming Climate, Environmental Protection and Energy Aid
Guidelines; and updating the Commission's 1997 Market
Definition Notice (by Q1 2023), taking into account significant
developments of the past twenty years, in particular digitalization
and new ways of offering goods and services.
For further details on the Communication, see below Section
on Cybersecurity.
|
European Commission adopts sixth amendment of State aid
Temporary Framework (see
here)
|
On 18 November 2021, the Commission adopted the sixth amendment
of the State aid Temporary Framework, adopted by the Commission in
March 2020 to facilitate targeted support by Member States to
businesses during the coronavirus crisis.
This latest amendment has two objectives:
First, the progressive phase-out of crisis measures of the
Temporary Framework, with a limited 6-month prolongation of
existing measures until 30 June 2022. This extension reflects
feedback received from the majority of Member States.
Second, boosting targeted support to companies most impacted by
the crisis by adding the following two new measures to the
Temporary Framework, which will be of longer duration than the
above-referred crisis measures:
- Enabling Member States to create direct incentives for private
investments (until 31 December 2022). This seeks to spur companies
to start filling the investment gap left by the crisis. Member
States can use this tool, in particular, to accelerate the green
and digital transitions by enabling support for any investments
that Member States consider to be important to accelerate economic
recovery (e.g. investments in equipment to improve the circular
economy, such as through recycling).
- Introducing a solvency support measure aimed at easing access
to equity finance for smaller companies (until 31 December 2023).
This measure enables Member States to leverage private funds and
make them available for investments in SMEs, including start-ups,
and small mid-caps. For example, Member States could provide
guarantees to investment funds, in view of reducing risks to
attract private investors.
Other targeted adjustments to the Temporary Framework include,
e.g. extending the adjusted list of non-marketable risk countries,
in the context of the short-term export credit insurance (STEC),
for an additional 3 months (from 31 December 2021 to 31 March 2022)
(see also
Jones Day COVID-19 Update No. 61 of 21 September
2021).
Since the Temporary Framework's inception, the Commission
has adopted over 670 decisions and approved over €3.1 trillion
of State aid in all 27 Member States. The Communication notes that
these decisions were adopted in record time, due to special
adoption procedures and close coordination between the Commission
and Member States
|
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