FR
News
01/04/2020
Adaptation of State aid rules in response to Covid-19

Last update on Apris 14, 2020

On March 13, 2020, the European Commission adopted a Communication on a coordinated economic response to the COVID-19 outbreak.

The Commission announced that the main budgetary response to the COVID-19 situation would come from the budgets of the Member States, which could at that date already act by using a number of public support measures which fell outside the scope of State aid control. In fact, Member States may provide for adaptations of general effect which, being in favor of all businesses and therefore not selective, do not fall under the rules regarding State aid. Many Member States have made use of this possibility, for example by announcing the deferral of taxes and social security contributions or by subsidizing part-time unemployment in all sectors. National funds can also be used to provide financial support to health services and other public services to cope with the COVID-19 situation. Compensation to companies for damages directly caused by this situation can also be granted, thus making it possible to support particularly affected sectors, such as transport, tourism, hotels and catering as well as retail trade. Finally, Member States can also grant financial support directly to consumers, for example in the event of cancellation of services or tickets not reimbursed by the operators concerned.

In addition, the European Commission also recalled that member states have several options to support specific companies or sectors suffering from the consequences of the COVID-19 epidemic within the legal framework of the European Union governing State aid.

In this respect, Article 107 (2) (b) of the TFEU allows Member States to compensate specific companies or sectors in the form of aid to remedy the damage caused by natural disasters or by natural disasters and other extraordinary events, such as COVID-19.

Additional measures, such as those falling within the scope of the de minimis Regulation n°1407/2013, namely those whose amount does not exceed 200 000 Euros per Member State over three years for the same company. Certain specific sectors, including transport, agriculture and fishing, are subject to a lower ceiling. Similarly, aid consisting of loans of less than 1 million Euros over five years or 500 000 Euros over ten years is considered de minimis, as well as loan guarantees covering a maximum amount of 1.5 million Euros over a period of 5 years or 750 000 Euros over a period of 10 years.

The measures provided for in the General Block Exemption Regulation n°651/2014  can also be set up by Member States without the need for Commission involvement.

In addition, Article 107 (3) (c) TFEU allows Member States to meet pressing liquidity needs arising from exceptional and unforeseen circumstances and to support companies in difficulty. These temporary liquidity aids takes the form of guarantees or loans and are provided for in the 2014 Guidelines on State aid for rescuing and restructuring undertakings in difficulty

On March 19, the Commission announced the adoption of a Temporary Framework for State aid measures to support the economy in the COVID-19 outbreak (hereinafter, the “Temporary Framework”), in order to allow Member States and their economies to mitigate negative repercussions in the face of the COVID-19 epidemic. In order to respond to the 2008 financial crisis, the Commission had already adopted these types of special rules, allowing Member States, temporarily and until the end of 2010, to grant financial aid, guarantees for loans or subsidized loans to banks which undertook to adopt measures to combat the economic crisis.

In addition to the many other support measures which the Member States may have recourse to, the Temporary Framework presents the exceptional financial measures which the States may grant to businesses on the basis of Article 107 (3) (b) of the TFEU to remedy the serious economic disruption related to the COVID-19 epidemic. Thus, the Temporary Framework allows member states, via their national budgets, to guarantee the availability of sufficient liquidity for businesses of all types and to preserve the continuity of economic activity during and after the COVID-19 outbreak.

The temporary framework provides five types of aid, in the form of:

  • Direct grants, selective tax advantages and repayable advances: Member States have the possibility of setting up schemes granting up to 800 000 Euros to a company to enable it to meet its urgent liquidity needs;
  • Guarantees on loans taken out by companies from banks: Member States can provide public guarantees to ensure that banks continue to grant loans to customers who need them;
  • Subsidized public loans granted to companies: Member States can grant loans at reduced interest rates to companies. These loans can help businesses cover their immediate working capital and investment needs;
  • Guarantees for banks that channel State aid to the real economy. This type of aid is considered direct aid to bank customers, not to the banks themselves, and provides guidance on how to minimize distortions of competition between banks;
  • Short-term export credit insurance as well as more flexibility in how to demonstrate that risks are not transferable in certain countries, allowing Member States to provide export credit insurance when this is necessary.

These measures should help target support for the economy, while providing a number of safeguards in order to limit the negative consequences on fair competition in the single market.

The Temporary Framework is currently scheduled to remain in place until the end of December 2020. In order to guarantee legal certainty, before this date the Commission will assess whether it is necessary to extend it.

On April 3, 2020, the European Commission adopted an amendment extending the Temporary Framework to allow Member States to accelerate the research, testing and manufacture of products essential to the fight against COVID-19, such as vaccines, pharmaceutical drugs, medical devices, disinfectants and protective equipment. In order to promote coordinated actions between Member States, additional support may also be granted to cross-border projects and for the supply of products within appropriate deadlines. In addition, the extension of the Temporary Framework provides Member States with additional possibilities in order to alleviate the liquidity constraints faced by businesses and to protect jobs in the sectors and regions particularly affected by this crisis.

A list of aid notified under the Temporary Framework and corresponding Decisions is available on the Commission's dedicated site:

https://ec.europa.eu/competition/state_aid/what_is_new/covid_19.html

The COUTRELIS & ASSOCIES law firm is closely following current events of European Union law on these subjects in order to allow its clients to adapt as quickly as possible to the evolution of the situation.

25/03/2020
European response to the COVID-19 epidemic

Last updated on April 14, 2020

The European Commission coordinates the common European response to the rapid spread of the COVID-19 epidemic in the different regions of the EU, by adopting a comprehensive set of measures to strengthen the public health sector and mitigate the socio-economic impact of this crisis within the European Union.

Based on the observation that the adoption of uncoordinated or even contradictory measures by Member States could undermine joint efforts to combat the epidemic, the role of the Commission consists mainly in helping Member States to face the crisis, by making recommendations on a common course of action in the fields of public health, but also transport, border control, internal markets and trade.
 
The first measures adopted, which we will update as the situation becomes clearer, concern in particular:
  • The adequate supply of protective equipment and medical supplies throughout Europe C/ 2020/1712 and 2020/C 108 I/01including the provision of European standards for certain medical devices and personal protective equipment Press Release
  • The application of flexibility for EU budgetary rules COM/2020/123 final
  • The proposal for the establishment of a 37 billion euro investment initiative in response to the coronavirus, in order to provide liquidity to small businesses and the health sector 2020/0043 (COD) and Regulation n°2020/460
  • Providing Member States with a coherent set of guidelines on border measures to protect the health of citizens while allowing the free movement of essential goods and personnel 2020/C 86 I/01 and 2020/C 102 I/03, including by facilitating air cargo operations C/2020/2010 and et Regulation n°2020/459 as well as the designation of dedicated lanes at internal border crossing points to ensure that supply chains continue to function at EU level 2020/C 96 I/01
  • The temporary restriction of non-essential travel to the European Union , the facilitation of transit arrangements for the repatriation of EU citizens 2020/C 102 I/02 as well as details on the rights of passengers and the corresponding obligations of carriers 2020/C 89 I/01 while implementing temporary measures to official control systems Regulation n°2020/466
  • Temporary framework for State aid measures in the EU, in order to ensure that targeted and proportionate national support measures effectively help businesses, by allowing Member States to guarantee the availability of sufficient liquidity in order to preserve the continuity of their economic activity 2020/C 91 I/01 and 2020/C 112 I/01
 
The Commission is also seeking to provide essential objective scientific information on the spread of the virus and the effectiveness of efforts to contain it. A council of scientists has thus been assembled to anticipate events and develop guidelines and strategies within the Union.
 
Finally, the European Commission reported on the impact of COVID-19 on ongoing anti-dumping and anti-subsidy investigations and procedures 2020/C 86/06
 
The COUTRELIS & ASSOCIES law firm is closely following current events of European Union law on these subjects in order to allow its clients to adapt as quickly as possible to the evolution of the situation.
 
07/02/2020
Competition law and the challenges of the digital era

The emergence and continuous growth of new innovative sectors, such as platforms operating on a global scale, the development of online sales, the creation of new products and services based on technological innovation, such as algorithms, the collection and study of mass data (big data), artificial intelligence and blockchain, are accompanied by the rise in power of dominant technological innovation companies in these markets.

Competition law must ensure the protection of effective competition also in these markets. This implies, in particular, allowing the emergence of companies and technologies competing with these “Bigtechs”. In addition, competition law must ensure consumer protection, particularly regarding the practices of digital players on the collection and management of personal data. The European data protection regulation (“GDPR”) constitutes a first legal basis in this area.

On April 4, 2019, the European Commission published a Report entitled "Competition policy in the digital age". The aim of this Report is to analyze possible adaptations of competition law to the digital age in order to guarantee innovation for the benefit of consumers. This Report recommends retaining Articles 101 and 102 TFEU, which allow anti-competitive behavior to be apprehended, but to soften the implementation mechanisms in the digital field. In this regard, the Report specifically recommends the adaptation of market definition to the digital economy. In addition, the Report advocates the establishment of sector-specific regulations relating to the problems of restrictions, by dominant companies, on access to data for new entrants, which would be more suitable than article 102 TFEU and launches the idea of a future block exemption regulation in this area. The Report also suggests, in specific cases, that the courts as well as the national competition authorities be able to determine if access to data is really essential and specify, as the case may be, the conditions under which the data can be accessed.

These recommendations will be the subject of debates and reflections on the adaptation of the current legal corpus to these new issues.

In France, the French Competition Authority has, for several years now, placed digital issues at the top of its priorities. To face these new challenges of the digital revolution and to decipher its operating modes, the Authority has created in 2020 a specialized service for the digital economy, directly attached to the Rapporteur General, whose mission is to develop expertise on all digital subjects and collaborate in investigations into anti-competitive practices in the digital economy.

This specialized service will be in charge of developing new digital investigation tools, based in particular on algorithmic technologies, mass data and artificial intelligence. It will thus be able to contribute - as was done for the reports already carried out on big data, online advertising and algorithms - to ongoing studies on payments, blockchain platforms and technologies as well as on mutations of physical distribution under digital influence (“phygital”).

Through its experience and deep knowledge of the current institutions which are to be adapted, COUTRELIS & ASSOCIES will be deeply involved in the debates to take place. Our firm will actively participate, at the national as well as at the European Union level, in adapting competition policy to the digital era and intends to fully contribute to its elaboration, to its explanation and to its enforcement. 
03/12/2018
The EU Regulation prohibiting geo-blocking has entered into application

Regulation n°2018/302 is part of a series of new rules aiming at the development of e-commerce (revised Payment Services Directive, revised consumer protection rules, simplified VAT rules for online sales, etc.), within the scope of  the digital single market strategy launched by the European Commission in 2015. These new rules will ensure better access to goods and services offered online within the Internal Market.

As of 3 December 2018, any form of restriction or discrimination from online sellers based directly or indirectly on customers’ nationality, place of residence or place of establishment is prohibited.

Such restriction may appear in various forms: denying the possibility to purchase or to access web content across borders, denying delivery across borders, providing different prices or conditions depending on nationality, rerouting automatically web users to the webpage dedicated to their country of origin, etc.

In 2015, according to the European Commission up to 63% of websites didn’t allow consumers to buy online from another Member State. This situation is now due to change.

COUTRELIS & ASSOCIES has continuously been in the forefront of Community law which, ever since the entry into force of the Lisbon treaty, has become the European Union law, taking also into account the European Law (ECHR and the European Court of Human Rights).

We are and have always been a niche and avant-garde firm. Our size allows each of our clients’ cases to warrant our fullest involvement and reach its greatest potential. We pride ourselves in knowing how to listen in order to ask the right questions, which allows us to best define problems and more quickly find the adequate solutions.

To this day, we have pleaded 94 cases before the Court of Justice of the European Union. Our experience in Luxembourg allows us to have a sharp understanding of all legal aspects of a case and is often a key factor in an overall strategy to avoid disputes or, if they do occur, to increase the chance of solving them, on the european and national levels, either before judges or administrative bodies.

Expertise has always been beneficial, but when it comes to European Union law, law firms offering cross-disciplinary expertise beyond the fields for which they are recognized to be amongst the best as, in our case, Competition law and Food law, are rather rare. Relying on the seniority of our practice in these two areas and in European Union law in general, we offer our clients a lot more than what meets their immediate counseling and litigation needs by raising at least their awareness on other issues which may affect their current or future position.

We consider our relationship with our clients to be based on mutual trust, allowing both sides to work together in overcoming common challenges, sometimes to the point of seeking to overturn a situation in the client’s favor.

News

01/04/2020
Adaptation of State aid rules in response to Covid-19

Last update on Apris 14, 2020

On March 13, 2020, the European Commission adopted a Communication on a coordinated economic response to the COVID-19 outbreak.

The Commission announced that the main budgetary response to the COVID-19 situation would come from the budgets of the Member States, which could at that date already act by using a number of public support measures which fell outside the scope of State aid control. In fact, Member States may provide for adaptations of general effect which, being in favor of all businesses and therefore not selective, do not fall under the rules regarding State aid. Many Member States have made use of this possibility, for example by announcing the deferral of taxes and social security contributions or by subsidizing part-time unemployment in all sectors. National funds can also be used to provide financial support to health services and other public services to cope with the COVID-19 situation. Compensation to companies for damages directly caused by this situation can also be granted, thus making it possible to support particularly affected sectors, such as transport, tourism, hotels and catering as well as retail trade. Finally, Member States can also grant financial support directly to consumers, for example in the event of cancellation of services or tickets not reimbursed by the operators concerned.

In addition, the European Commission also recalled that member states have several options to support specific companies or sectors suffering from the consequences of the COVID-19 epidemic within the legal framework of the European Union governing State aid.

In this respect, Article 107 (2) (b) of the TFEU allows Member States to compensate specific companies or sectors in the form of aid to remedy the damage caused by natural disasters or by natural disasters and other extraordinary events, such as COVID-19.

Additional measures, such as those falling within the scope of the de minimis Regulation n°1407/2013, namely those whose amount does not exceed 200 000 Euros per Member State over three years for the same company. Certain specific sectors, including transport, agriculture and fishing, are subject to a lower ceiling. Similarly, aid consisting of loans of less than 1 million Euros over five years or 500 000 Euros over ten years is considered de minimis, as well as loan guarantees covering a maximum amount of 1.5 million Euros over a period of 5 years or 750 000 Euros over a period of 10 years.

The measures provided for in the General Block Exemption Regulation n°651/2014  can also be set up by Member States without the need for Commission involvement.

In addition, Article 107 (3) (c) TFEU allows Member States to meet pressing liquidity needs arising from exceptional and unforeseen circumstances and to support companies in difficulty. These temporary liquidity aids takes the form of guarantees or loans and are provided for in the 2014 Guidelines on State aid for rescuing and restructuring undertakings in difficulty

On March 19, the Commission announced the adoption of a Temporary Framework for State aid measures to support the economy in the COVID-19 outbreak (hereinafter, the “Temporary Framework”), in order to allow Member States and their economies to mitigate negative repercussions in the face of the COVID-19 epidemic. In order to respond to the 2008 financial crisis, the Commission had already adopted these types of special rules, allowing Member States, temporarily and until the end of 2010, to grant financial aid, guarantees for loans or subsidized loans to banks which undertook to adopt measures to combat the economic crisis.

In addition to the many other support measures which the Member States may have recourse to, the Temporary Framework presents the exceptional financial measures which the States may grant to businesses on the basis of Article 107 (3) (b) of the TFEU to remedy the serious economic disruption related to the COVID-19 epidemic. Thus, the Temporary Framework allows member states, via their national budgets, to guarantee the availability of sufficient liquidity for businesses of all types and to preserve the continuity of economic activity during and after the COVID-19 outbreak.

The temporary framework provides five types of aid, in the form of:

  • Direct grants, selective tax advantages and repayable advances: Member States have the possibility of setting up schemes granting up to 800 000 Euros to a company to enable it to meet its urgent liquidity needs;
  • Guarantees on loans taken out by companies from banks: Member States can provide public guarantees to ensure that banks continue to grant loans to customers who need them;
  • Subsidized public loans granted to companies: Member States can grant loans at reduced interest rates to companies. These loans can help businesses cover their immediate working capital and investment needs;
  • Guarantees for banks that channel State aid to the real economy. This type of aid is considered direct aid to bank customers, not to the banks themselves, and provides guidance on how to minimize distortions of competition between banks;
  • Short-term export credit insurance as well as more flexibility in how to demonstrate that risks are not transferable in certain countries, allowing Member States to provide export credit insurance when this is necessary.

These measures should help target support for the economy, while providing a number of safeguards in order to limit the negative consequences on fair competition in the single market.

The Temporary Framework is currently scheduled to remain in place until the end of December 2020. In order to guarantee legal certainty, before this date the Commission will assess whether it is necessary to extend it.

On April 3, 2020, the European Commission adopted an amendment extending the Temporary Framework to allow Member States to accelerate the research, testing and manufacture of products essential to the fight against COVID-19, such as vaccines, pharmaceutical drugs, medical devices, disinfectants and protective equipment. In order to promote coordinated actions between Member States, additional support may also be granted to cross-border projects and for the supply of products within appropriate deadlines. In addition, the extension of the Temporary Framework provides Member States with additional possibilities in order to alleviate the liquidity constraints faced by businesses and to protect jobs in the sectors and regions particularly affected by this crisis.

A list of aid notified under the Temporary Framework and corresponding Decisions is available on the Commission's dedicated site:

https://ec.europa.eu/competition/state_aid/what_is_new/covid_19.html

The COUTRELIS & ASSOCIES law firm is closely following current events of European Union law on these subjects in order to allow its clients to adapt as quickly as possible to the evolution of the situation.

25/03/2020
European response to the COVID-19 epidemic

Last updated on April 14, 2020

The European Commission coordinates the common European response to the rapid spread of the COVID-19 epidemic in the different regions of the EU, by adopting a comprehensive set of measures to strengthen the public health sector and mitigate the socio-economic impact of this crisis within the European Union.

Based on the observation that the adoption of uncoordinated or even contradictory measures by Member States could undermine joint efforts to combat the epidemic, the role of the Commission consists mainly in helping Member States to face the crisis, by making recommendations on a common course of action in the fields of public health, but also transport, border control, internal markets and trade.
 
The first measures adopted, which we will update as the situation becomes clearer, concern in particular:
  • The adequate supply of protective equipment and medical supplies throughout Europe C/ 2020/1712 and 2020/C 108 I/01including the provision of European standards for certain medical devices and personal protective equipment Press Release
  • The application of flexibility for EU budgetary rules COM/2020/123 final
  • The proposal for the establishment of a 37 billion euro investment initiative in response to the coronavirus, in order to provide liquidity to small businesses and the health sector 2020/0043 (COD) and Regulation n°2020/460
  • Providing Member States with a coherent set of guidelines on border measures to protect the health of citizens while allowing the free movement of essential goods and personnel 2020/C 86 I/01 and 2020/C 102 I/03, including by facilitating air cargo operations C/2020/2010 and et Regulation n°2020/459 as well as the designation of dedicated lanes at internal border crossing points to ensure that supply chains continue to function at EU level 2020/C 96 I/01
  • The temporary restriction of non-essential travel to the European Union , the facilitation of transit arrangements for the repatriation of EU citizens 2020/C 102 I/02 as well as details on the rights of passengers and the corresponding obligations of carriers 2020/C 89 I/01 while implementing temporary measures to official control systems Regulation n°2020/466
  • Temporary framework for State aid measures in the EU, in order to ensure that targeted and proportionate national support measures effectively help businesses, by allowing Member States to guarantee the availability of sufficient liquidity in order to preserve the continuity of their economic activity 2020/C 91 I/01 and 2020/C 112 I/01
 
The Commission is also seeking to provide essential objective scientific information on the spread of the virus and the effectiveness of efforts to contain it. A council of scientists has thus been assembled to anticipate events and develop guidelines and strategies within the Union.
 
Finally, the European Commission reported on the impact of COVID-19 on ongoing anti-dumping and anti-subsidy investigations and procedures 2020/C 86/06
 
The COUTRELIS & ASSOCIES law firm is closely following current events of European Union law on these subjects in order to allow its clients to adapt as quickly as possible to the evolution of the situation.
 
07/02/2020
Competition law and the challenges of the digital era

The emergence and continuous growth of new innovative sectors, such as platforms operating on a global scale, the development of online sales, the creation of new products and services based on technological innovation, such as algorithms, the collection and study of mass data (big data), artificial intelligence and blockchain, are accompanied by the rise in power of dominant technological innovation companies in these markets.

Competition law must ensure the protection of effective competition also in these markets. This implies, in particular, allowing the emergence of companies and technologies competing with these “Bigtechs”. In addition, competition law must ensure consumer protection, particularly regarding the practices of digital players on the collection and management of personal data. The European data protection regulation (“GDPR”) constitutes a first legal basis in this area.

On April 4, 2019, the European Commission published a Report entitled "Competition policy in the digital age". The aim of this Report is to analyze possible adaptations of competition law to the digital age in order to guarantee innovation for the benefit of consumers. This Report recommends retaining Articles 101 and 102 TFEU, which allow anti-competitive behavior to be apprehended, but to soften the implementation mechanisms in the digital field. In this regard, the Report specifically recommends the adaptation of market definition to the digital economy. In addition, the Report advocates the establishment of sector-specific regulations relating to the problems of restrictions, by dominant companies, on access to data for new entrants, which would be more suitable than article 102 TFEU and launches the idea of a future block exemption regulation in this area. The Report also suggests, in specific cases, that the courts as well as the national competition authorities be able to determine if access to data is really essential and specify, as the case may be, the conditions under which the data can be accessed.

These recommendations will be the subject of debates and reflections on the adaptation of the current legal corpus to these new issues.

In France, the French Competition Authority has, for several years now, placed digital issues at the top of its priorities. To face these new challenges of the digital revolution and to decipher its operating modes, the Authority has created in 2020 a specialized service for the digital economy, directly attached to the Rapporteur General, whose mission is to develop expertise on all digital subjects and collaborate in investigations into anti-competitive practices in the digital economy.

This specialized service will be in charge of developing new digital investigation tools, based in particular on algorithmic technologies, mass data and artificial intelligence. It will thus be able to contribute - as was done for the reports already carried out on big data, online advertising and algorithms - to ongoing studies on payments, blockchain platforms and technologies as well as on mutations of physical distribution under digital influence (“phygital”).

Through its experience and deep knowledge of the current institutions which are to be adapted, COUTRELIS & ASSOCIES will be deeply involved in the debates to take place. Our firm will actively participate, at the national as well as at the European Union level, in adapting competition policy to the digital era and intends to fully contribute to its elaboration, to its explanation and to its enforcement. 
03/12/2018
The EU Regulation prohibiting geo-blocking has entered into application

Regulation n°2018/302 is part of a series of new rules aiming at the development of e-commerce (revised Payment Services Directive, revised consumer protection rules, simplified VAT rules for online sales, etc.), within the scope of  the digital single market strategy launched by the European Commission in 2015. These new rules will ensure better access to goods and services offered online within the Internal Market.

As of 3 December 2018, any form of restriction or discrimination from online sellers based directly or indirectly on customers’ nationality, place of residence or place of establishment is prohibited.

Such restriction may appear in various forms: denying the possibility to purchase or to access web content across borders, denying delivery across borders, providing different prices or conditions depending on nationality, rerouting automatically web users to the webpage dedicated to their country of origin, etc.

In 2015, according to the European Commission up to 63% of websites didn’t allow consumers to buy online from another Member State. This situation is now due to change.

Cbi Multimédia