Regulatory policy

COVID-19 Key EU Developments, Policy and Regulatory Update No. 90 – Operational Impacts and Strategy

LATEST KEY DEVELOPMENTS

Competition and state aid

  • European Commission publishes FAQ on leniency policy and practice

  • The European Commission publishes a note on State aid regarding the use of the COVID Temporary Framework

  • European Commission extends investment support measures and approves new schemes amid temporary COVID crisis

  • The European Commission modifies the temporary crisis framework in Ukraine

  • European Commission approves further schemes under Ukraine’s Temporary Crisis Framework

Trade / Export Controls

  • Council adopts EU Single Window for Customs

  • European Commission proposes new emergency regulation to tackle high gas prices and security of supply

Medicines and medical devices

  • The Council of the European Union adopts three regulations within the framework of the European Health Union

  • HERA and the Coalition for Epidemic Preparedness Innovations (CEPI) agree to enhanced cooperation in the development of medical countermeasures

  • The European Commission adopts the work program for 2023

Cybersecurity, privacy and data protection

  • The Digital Services Act published in the Official Journal of the EU

  • The European Commission adopts the work program for 2023

Competition

The European Commission publishes a FAQ on leniency policy and practice (see here)

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

Given a more complex leniency landscape, the Commission indicated that the FAQs aim to facilitate leniency applications, in particular by:

  • Provide details on the application of the leniency noticee and details of the legal protections and benefits offered by the leniency program;

  • Location new practical arrangements, such as leniency Officers who are the first point of contact within DG Competition’s Cartel Directorate for any potential leniency applicant. Companies or their legal representatives can contact leniency officers for informal leniency advice or advice on submitting a possible leniency application on an “anonymous” basis;

  • indicating the The Commission’s intention to discuss possible leniency applications on an ‘unnamed’without the need to disclose the sector, the parties involved or any other details identifying the potential agreement. This will allow potential applicants to determine whether the conduct at issue is likely to be considered a secret cartel and whether reporting it to the Commission would entitle them to benefit from the leniency programme.

The FAQ also explains 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 previously noted that the eLeniency tool ensured the proper functioning of its leniency program

As of October 2022, as a reminder, the new version of eLeniency now allows the Commission to securely grant access to corporate statements and other leniency documents to parties involved in cartel and which would otherwise only be accessible at the physical premises of the Commission. In addition, the updated eLeniency tool enables the Commission to serve letters, decisions and other documents online in the context of the leniency procedure (e.g. letters granting a marker, letters of no -intervention, etc.) (see also Jones Day COVID-19 Update No 88 of October 3, 2022).

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

State aid

The European Commission publishes a note on State aid regarding the use of the COVID Temporary Framework (see here)

On October 17, 2022, the Commission published a State aid brief, “A look back at the COVID State Aid Temporary Framework: the adoption of the measures in the EU.”

As a reminder, the COVID Temporary Framework, adopted on 19 March 2020 and amended six times, aimed to allow Member States to put in place unprecedented levels of support to keep otherwise profitable businesses afloat during the COVID crisis. The Commission has decided not to extend the COVID State Aid Temporary Framework beyond the expiry date of 30 June 2022, with a few exceptions (see below).

The State aid Brief reports that the Commission took some 1185 decisions approving more than 865 national measures notified by all Member States for an overall budget of more than €3.1 trillion in aid approved between the emergence of the crisis in mid-March 2020 and end of 2021. Of this 3,100 billion euros in aid, around 30% (940 billion euros) was actually granted to companies.

The difference between the amounts committed and the amounts actually deployed shows that the 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 data from member states, Germany provided the most COVID aid (€226 billion), followed by France (€223 billion). In relative terms, Italy provided the highest share of aid in relation 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 reports that Russia’s war on Ukraine, followed by restrictive measures against Russia and countermeasures, has created a serious disruption of the European economy. EU businesses are facing challenges such as blockages in the supply of energy and raw materials and soaring energy and food prices. In response, in March 2022 the Commission adopted the Temporary Crisis Framework for Ukraine (see below for details).

The State aid note indicates that the Commission is constantly monitoring the effective implementation of State aid measures related to COVID-19 in the Member States, in order to constantly adapt its strategy on aid to developments in the internal market.

DG Competition’s main statistical data on state aid related to COVID-19 can be found here.

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