LATEST KEY DEVELOPMENTS

Competition & State Aid

  • European Commission issues FAQs on leniency policy and practice
  • European Commission publishes State aid brief on use of COVID Temporary Framework
  • European Commission prolongs investment support measures and approves further schemes under COVID Temporary Crisis Framework
  • European Commission amends Ukraine Temporary Crisis Framework
  • European Commission approves further schemes under Ukraine Temporary Crisis Framework

Trade / Export Controls

  • Council adopts EU Single Window for Customs
  • European Commission proposes new emergency Regulation to address high gas prices and supply security

Medicines and Medical Devices

  • Council of the European Union adopts three Regulations as part of European Health Union
  • HERA and Coalition for Epidemic Preparedness Innovations (CEPI) agree on stronger cooperation in development of medical countermeasures
  • European Commission adopts Work Programme for 2023

Cybersecurity, Privacy & Data Protection

  • Digital Services Act published in EU Official Journal
  • European Commission adopts Work Programme for 2023

Competition

European Commission issues FAQs on leniency policy and practice (see here)

On 24 October 2022, the Commission published FAQs to provide guidance on its leniency policy and practice. The Commission has operated a leniency program since 1996 and introduced the currently applicable Leniency Notice in 2006 (see here).

In view of a more complex leniency landscape, the Commission indicated that the FAQs seek to facilitate leniency applications, in particular, by:

  • Providing clarifications on application of the Leniency Notice and details on the legal protections and benefits offered by the leniency program;
  • Setting out new practical arrangements, such as Leniency Officers who are the first point of contact in the Cartels Directorate of DG Competition for any potential leniency applicant. Companies or their legal representatives can contact Leniency Officers for informal advice on leniency or guidance on submitting a potential leniency application on a "no-name" basis;
  • Indicating the Commission's intention to discuss potential leniency applications on a "no-name" basis, without the need to disclose the sector, the parties involved or any other details identifying the potential cartel. This will allow potential applicants to ascertain whether the conduct at stake is likely to be viewed as a secret cartel and whether reporting it to the Commission would entitle them to benefit from the leniency program.

The FAQs also explain the Commission's eLeniency platform, which allows applicants to submit their leniency applications, including marker applications and supporting documents, directly online on the Commission's secure server. During the COVID-19 lockdown period, the Commission earlier noted that the eLeniency tool ensured the smooth running of its leniency program

As of October 2022, to recall, the new version of eLeniency now allows the Commission to securely grant access to corporate statements and other leniency material to parties involved in cartel and antitrust proceedings, which would otherwise only be accessible at the Commission's physical premises. Additionally, the upgraded eLeniency tool enables the Commission to notify online letters, decisions and other documents in the context of the leniency procedure (e.g. letters granting a marker, no-action letters, etc.) (see also Jones Day COVID-19 Update No. 88 of 3 October 2022).

Since its introduction in 2019, the FAQs note that eLeniency has become the primary and preferred procedure for leniency submissions (applications and corporate statements).

State Aid

European Commission publishes State aid brief on use of COVID Temporary Framework (see here)

On 17 Oct 2022, the Commission issued a State aid Brief, "Looking back at the State aid COVID Temporary Framework: the take-up of measures in the EU."

To recall, the COVID Temporary Framework, adopted on 19 March 2020 and amended six times, sought to enable Member States to put in place unprecedented levels of support to keep otherwise profitable companies afloat during the COVID crisis. The Commission decided not to extend the State aid COVID Temporary Framework beyond the expiry date of 30 June 2022, with some exceptions (see below).

The State aid Brief reports that the Commission took some 1185 decisions approving over 865 national measures notified by all Member States for an overall budget of over €3.1 trillion in aid approved between the crisis' emergence in mid-March 2020 and end-2021. Of this €3.1 trillion in aid, around 30% (€940 billion) was actually granted to businesses.

The gap between the amounts committed and the amounts actually deployed shows that Member States had not yet exhausted their support capacity six months before the expiry of the Temporary Framework on 30 June 2022 (with certain exceptions, see below).

In absolute terms, according to preliminary Member State data, Germany granted the most COVID aid (€226 billion), followed by France (€223 billion). In relative terms, Italy provided the highest share of aid as compared to its own GDP (6%), followed by Spain (5.3%), Hungary (5%), France (4.7%), and Greece (4%).

Despite signs that the European economy is emerging from the pandemic crisis, the State aid Brief indicates that Russia's war against Ukraine, followed by restrictive measures against Russia and countermeasures, has created a serious disturbance in the European economy. EU companies are facing difficulties such as blockages in the supply of energy and raw materials and surging energy and food prices. In response, in March 2022, the Commission adopted the Ukraine Temporary Crisis Framework (see below for more details).

The State aid Brief indicates that the Commission continuously monitors the actual implementation of COVID-19 State aid measures in the Member States, in order to continuously adapt its State aid strategy to the evolution of the internal market situation.

DG Competition's main statistical data on COVID-19 State aid is available  here.

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