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 releases draft revised Market Definition Notice and opens public consultation
- Second meeting of EU-US Joint Technology Competition Policy Dialogue
- European Commission approves further schemes under Ukraine Temporary Crisis Framework
Trade / Export Controls
- European Commission adopts proposed Regulation to increase the availability and use of instant payments in euro
- European Commission publishes third Report on assessment of risk of money laundering and terrorist financing
Medicines and Medical Devices
- European Commission reaches agreement with BioNTech-Pfizer on improving Member State management of vaccine needs
Cybersecurity, Privacy & Data Protection
- European Commission publishes proposed Regulation on data collection and sharing relating to short-term accommodation rental services
- European Commission, EU Member States and ENISA simulate large-scale cyber-attacks in "Blueprint Operational Level Exercise"
- ENISA publishes Threat Landscape 2022 Report
European Commission releases draft revised Market Definition Notice and opens public consultation (see here and here)
On 8 November 2022, the Commission made public the draft revised Market Definition Notice and opened a public consultation on the draft Notice.
This is the first revision of the 1997 Market Definition Notice, which provides guidance on the principles and best practices of how the Commission applies the concept of relevant product and geographic market in enforcing EU competition law. The revision process seeks to take into account significant market developments over the years, and the draft Notice reflects the extensive review process launched in April 2020, including views gathered from over 100 stakeholders on the current Notice.
The draft Notice, in particular, reflects digitalization, globalization, and new ways of offering goods and services. As noted by the Commission, the role of online platforms is ever-increasing due to the growth in e-commerce, which was further strengthened due to the COVID-19 pandemic, which incentivized consumers to more heavily rely on their use of search engines, social media and online entertainment media (see Commission Evaluation of the Commission Notice on the definition of relevant market for the purposes of Community competition law of 9 December 1997 (here)).
The draft Notice's main objective is to boost guidance, transparency and legal certainty for businesses to facilitate compliance. The proposed changes provide new or additional guidance on various key market definition issues, such as:
- Explanations on the principles of market definition and how market definition is used for the purpose of applying competition rules.
- Greater emphasis on non-price elements such as innovation and quality of products and services.
- Clarifications on the forward-looking application of market definition, especially in markets expected to undergo structural transitions, such as technological or regulatory changes.
- New guidance on market definition in digital markets, for example multi-sided markets and "digital eco-systems" (e.g. products built around a mobile operating system).
- New principles on innovation-intensive markets, clarifying how to assess markets where companies compete on innovation, including through pipeline products.
- Expanded guidance on geographic market definition, such as the conditions for defining global markets and the approach to assessing imports.
Comments on the draft Notice may be submitted until 13 January 2023. On the basis of evidence gathered during the review process, including
comments received in the present public consultation, the Commission will revise and finalize the draft Notice in view of having a new Market Definition Notice in place in Q3 2023.
Second meeting of EU-US Joint Technology Competition Policy Dialogue (see here)
On 13 October 2022, the second meeting of the EU-US Joint Technology Competition Policy Dialogue (TCPD) took place between European Commission Executive Vice-President and Competition Commissioner Margrethe Vestager, US Federal Trade Commission Chair Lina Khan, and Assistant Attorney General for Antitrust of the US Department of Justice Jonathan Kanter.
To recall, the EU-US TCPD seeks to help the EU and US to address common perceived challenges in technology and digital markets. Its first meeting was on 7 December 2021 (see here).
Commissioner Vestager has earlier commented on the prominence of technology, both in serving to recover from the COVID-19 pandemic and in raising complexities in safeguarding competition, individuals, and democratic values. This includes shared EU and US ambitions for unprecedented levels of funding on innovation from 5G and fibre rollout to advanced digital skills (see Jones Day COVID-19 Update No. 71 of 13 December 2021).
This second TCPD meeting took stock on the progress made on EU-US cooperation efforts to ensure and promote fair competition in the digital sector. Among others, the discussion focused on the:
- importance of forward-looking analysis in the field of technology to identify future key markets and potential issues in the digital sector;
- adoption of effective remedies in digital cases; and
- need to keep merger regulations suited to a digitalized economy.
The TCPD will continue with high-level meetings, in addition to regular discussions at technical level.
The TCPD was created alongside the EU-US Trade and Technology Council (TTC), which focuses on coordinated EU-US approaches to global trade, economic, and technology issues and the strengthening of transatlantic trade and economic relations. (see Jones Day COVID-19 Update No. 84 of 17 May 2022).
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