This newsletter provides a selection of opinions and analysis from our EU legal experts on interesting policy developments, recent case law and new regulatory directions of major industry practices. It is released biweekly and covers areas such as: Competition Law, Sanctions, Trade, Energy, Finance, EU funds, Data IP and Privacy, Life Sciences, Transport and Court of Justice of the European Union news.

The aim is to provide an up–to–date tool for quick and easy consultation on the most current and important topics at EU level.

• Competition Law and State Aid
• Sanctions
• Trade
• Energy and Green Deal
• Banking & Finance
• EU Funds
• Life Sciences
• Transport and Electric Vehicles
• Data, IP and Privacy
• Consultions and Calls

The European Commission sends preliminary findings to Apple and opens additional non-compliance investigation against Apple under the Digital Markets Act (24.06.2024) – The European Commission has informed Apple of its preliminary view that its App Store rules are in breach of the Digital Markets Act (DMA), as they prevent app developers from freely steering consumers to alternative channels for offers and content. In addition, the Commission opened a new non-compliance procedure against Apple over concerns that its new contractual requirements for third-party app developers and app stores, including Apple's new “Core Technology Fee”, fall short of ensuring effective compliance with Apple's obligations under the DMA. If the Commission's preliminary views were to be ultimately confirmed, none of Apple's three sets of business terms would comply with Article 5(4) of the DMA, which requires gatekeepers to allow app developers to steer consumers to offers outside the gatekeepers' app stores, free of charge. The Commission would then adopt a non-compliance decision within 12 months from the opening of proceedings on 25^th March 2024.

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Germany: the European Commission approves 3 billion euro German State aid scheme to support the development of Hydrogen Core Network (21.06.2024) – The European Commission has approved, under EU State aid rules, an estimated 3 billion euro German scheme to support the construction of the Hydrogen Core Network (‘HCN'). The measure will contribute to the achievement of the objectives of the EU Hydrogen Strategy and 'Fit for 55' package, by enabling the creation of hydrogen transmission infrastructure that is needed to foster the use of renewable hydrogen in industry and transport by 2030. The measure aims to facilitate investments in the construction of the HCN. Necessary investments include (i) repurposing of existing gas pipelines to transport hydrogen, and (ii) building new hydrogen pipelines and compressor stations. The construction and operation of the HCN will be financed by hydrogen transmission system operators (TSOs), who will be selected by the German federal network agency, Bundesnetzagentur. The aid will take the form of a State guarantee which will allow the TSOs to obtain more favourable loans to cover initial losses in the ramp-up phase of the HCN. At first, Germany expects only a small number of consumers to be using the network, and the tariffs will be lower than otherwise needed to cover relevant costs, to encourage this use and facilitate the uptake of hydrogen.

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The European Commission carries out further unannounced antitrust inspections in tyres sector cartel investigation (18.06.2024) – The European Commission is carrying out unannounced inspections at the premises of a consultancy firm in two Member States. Inspections are conducted in the context of an investigation for which the Commission carried out inspections earlier in 2024, that saw as products concerned by the inspections new replacement tyres for passenger cars, vans, trucks and busses sold in the European Economic Area. The European Commission is concerned that price coordination took place amongst the inspected companies, including via public communications. In particular the European Commission is concerned that the consultancy firm may have facilitated or instigated the suspected price coordination amongst tyre manufacturers, which allegedly also used public communications channels to collude.

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Italy: the European Commission approves 570 million euro Italian State aid scheme to reduce emissions in ports (17.06.2024) – The European Commission has approved, under EU State aid rules, a 570 million euro Italian scheme to incentivize ships to use shore-side electricity when they are at berth in maritime ports. The measure contributes to reducing greenhouse gas emissions, air pollution and noise in line with the objectives of the European Green Deal. Under the scheme, the aid takes the form of a reduction of up to 100% of the so-called ‘general system charges'. Those charges are included in the electricity price and aimed at financing certain public policy objectives, including renewable energy. The reduction will result in a lower electricity price for ship operators when purchasing shore-side electricity and will bring the cost of electricity at a competitive level with the cost of producing electricity on-board through fossil-fueled engines. By lowering the cost of shore-side electricity for ships, the measure will incentivize ship operators to opt for the more environmentally friendly electricity supply, thereby avoiding significant greenhouse gas emissions, air pollutants and noise emissions.

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Germany: the European Commission opens in-depth State aid investigation into measures to support local bus transport operator WestVerkehr (13.06.2024) – The European Commission has opened an in-depth investigation to assess whether certain support measures to German local public transport company WestVerkehr GmbH (‘WestVerkehr') are in line with EU State aid rules. The alleged aid measures are: (i) a direct award of a public service contract by the district of Heinsberg to WestVerkehr; (ii) a profit and loss transfer agreement between WestVerkehr and its majority shareholder NEW Kommunalholding GmbH; (iii) a payment into WestVerkehr's capital reserve by its minority shareholder Kreiswerke Heinsberg GmbH; and (iv) a current account agreement between WestVerkehr and Kreiswerke Heinsberg. NEW Kommunalholding and Kreiswerke Heinsberg are companies in which the district of Heinsberg holds shares. The Commission takes the preliminary view that these four measures constitute State aid.

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The European Commission sends Statement of Objections to Alchem over first pharmaceutical cartel case in the EU (13.06.2024) – The European Commission has informed Alchem International Pvt. Ltd. and its subsidiary Alchem International (H.K.) Limited (together ‘Alchem') of its preliminary view that they have breached EU antitrust rules by participating in a long-lasting cartel concerning an important pharmaceutical product. If the Commission's preliminary view were confirmed, such behaviour would violate EU rules that prohibit anti-competitive business practices such as collusion on prices and market sharing. The sending of a Statement of Objections does not prejudge the outcome of the investigation.

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Czech Republic: the European Commission calls for improvement of competition in organising waste collection and recovery in the packaging sector (11.06.2024) – The European Commission has informed Czechia that measures appointing EKO-KOM as the only company authorised for the collection and recovery of packaging waste for over two decades may be in breach of the EU competition rules. The Commission's preliminary view is that certain provisions of the Czech Packaging Act as well as Czechia's enforcement of such rules may have created significant entry barriers for rival companies. Such barriers include authorisation requirements that are very difficult to meet, such as strict contractual and financial conditions. The European Commission has voiced its competition concerns in the form of a Letter of Formal Notice. If the Commission's preliminary view is confirmed, this conduct would infringe Article 106 of the Treaty on the Functioning of the European Union (‘TFEU') in conjunction with Article 102 TFEU.

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Hungary: the European Commission finds support for new auto parts plant in Észak Magyarország to be incompatible State aid (11.06.2024) – The European Commission has concluded that Hungary's plan to support the construction of a new automotive components plant in Észak Magyarország is not in line with EU State aid rules. Therefore, the aid cannot be granted by Hungary. Indeed. the available evidence showed that the beneficiary had decided to invest in Hungary without considering the public support and there was no sufficient evidence that the investment would take place in another location. Since the public support did therefore not have a real "incentive effect" and it did not effectively encourage GKN Automotive Hungary to invest in the specific region of Észak Magyarország, the aid is incompatible with EU State Aid rules. Therefore, the aid cannot be granted by Hungary.

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Politico: Belgium pitches EU agency to screen algorithms

Belgium thinks the European Union needs an agency with technical expertise in algorithms — and it will push for one during its stint at the Council presidency next year. 

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  EURACTIV: Cyber Resilience Act’s positions

Both COREPER and the European Parliament’s Industry Committee adopted their positions on the Cyber Resilience Act. The negotiations between the EU co-legislators are due to start in September. 

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AI TRILOGUE

The first political trilogue on the AI Act of the Spanish presidency reached little progress on the issues that were not already virtually closed at the technical level, media reports. 

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READ: Bruegel analysis of the AI Act

J. Scott Marcus, a Senior Fellow at Bruegel writes that the European Union’s draft AI Act already needs to be revised to account for the opportunities and harms of generative AI. 

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EVETS: Stanford University

Stanford HAI convened experts in artificial intelligence, law, and policy to explore the finer points of the regulation, what aspects may still be up for negotiation between the three EU institutions, what’s missing, and how likely technology companies will be able to follow it.  

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EU Cohesion Policy: more than EUR 110 million for the modernisation of a railway corridor in western Bulgaria - On 15.7.2022 the Commission approved an investment of more than EUR 110 million from the Cohesion Fund for the first phase of a project to modernise a railway corridor in western Bulgaria, part of a wider TEN-T network between Sofia and the Serbian border. The modernisation concerns a 33.34 km long section between Voluyak and Dragoman. The railway line section connects western Bulgaria with Serbia and is part of the transport corridor connecting Turkey with western and central Europe.

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State aid: Commission approves public funding of up to €5.4 billion from fifteen Member States to support a major project of common European interest on the hydrogen technology value chain - The Commission, under EU state aid rules, has approved a major project of common European interest (IPCEI) to support research and innovation in the field of hydrogen use. The project, called 'IPCEI Hy2Tech', was prepared and notified jointly by 15 Member States: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Italy, the Netherlands, Poland, Portugal, Slovakia and Spain. The Member States will provide up to €5.4 billion of public funding, which should unlock a further €8.8 billion of private investment. Under this IPCEI, 35 companies active in one or more Member States, including small and medium-sized enterprises (SMEs) and start-ups, will participate in 41 projects. The IPCEI will cover a wide part of the hydrogen value chain, including (i) hydrogen production, (ii) fuel cells, (iii) hydrogen storage, transport and distribution, and (iv) end-use applications, particularly in the mobility sector. It is expected to contribute to the development of important technological innovations, e.g. new materials for highly efficient electrodes, more efficient fuel cells and innovative transport technologies, including the first hydrogen mobility technologies.

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Road safety: Commission urges 6 Member States to comply with revised Road Infrastructure Safety Management Directive - On 15.7.2022, the Commission sent reasoned opinions to Greece, the Netherlands, Poland, Portugal, Slovakia and Slovenia for incomplete transposition of the revised European legislation on road infrastructure safety management. The amendment of Directive 2008/96/EC, adopted in 2019 with an extended scope, requires the establishment and implementation of procedures for road safety impact assessments, road safety audits, road safety inspections and network-wide road safety assessments by Member States. These measures ensure road safety, also taking into account the needs of vulnerable road users. All these obligations had to be transposed by 17 December 2021. Today's reasoned opinions follow the letters of formal notice sent by the Commission in January 2022. Greece, the Netherlands, Poland, Portugal, Slovakia and Slovenia now have 2 months to notify the Commission of measures taken to ensure full transposition of the Directive, after which the Commission may decide to refer the case to the EU's Court of Justice.

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Measures to support the economy

REACT-EU - Euro 642 million to support economic recovery and digital and green transition in Belgium, Czech Republic, Poland and Romania - With the allocation of Euro 642 million made available through the European Territorial Recovery and Cohesion Policy Assistance ('REACT-EU')[1], the regions of Belgium, Czech Republic, Poland and Romania will be able to further support their economic recovery and digital and green transition. In Belgium, the Brussels region will receive an additional EUR 6 million to support small and medium-sized enterprises (SMEs) in the sectors most affected by the coronavirus pandemic, such as catering, healthcare and construction. In Poland, the Łódzkie region will receive EUR 26 million to support SMEs, the health sector and renewable energy. In addition, the 'Digital Poland' programme will receive EUR 81 million for projects developing innovative IT tools for public services and the general digitisation of local public administration. In Romania, EUR 216 million will be used to equip public hospitals with specific medical and protective equipment and to improve sanitary conditions in schools in order to provide better protection for pupils and teachers from the risks of coronavirus infection.

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European Commission launches Euro 3.2 billion investment package to promote sustainable connectivity in the Western Balkans - On 25.02.2022, the Commission unveiled a substantial Euro 3.2 billion investment package to support 21 transport, digital, climate and energy connectivity projects in the Western Balkans. This is the first major package of projects under the ambitious EU economic and investment plan for the Western Balkans, which the Commission adopted in October 2020. The projects are intended to bring tangible benefits to the region's partners. Over the next few years, the Economic and Investment Plan is expected to mobilise up to EUR 30 billion in investments, in the form of a combination of grants, preferential loans and guarantees. The plan will help bridge the development gap between the EU and the region, and support post-pandemic economic recovery. The plan will also help realise the EU's broader Global Gateway strategy, launched in December 2021.

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Commission publishes enhanced surveillance report for Greece - On 24.02.2022, the Commission published the thirteenth enhanced surveillance report [2] for Greece. The report is prepared in the context of the enhanced surveillance framework that serves to ensure continued support for the implementation of Greece's reform commitments following the successful completion of the financial assistance programme in 2018. The report concludes that Greece has taken the necessary actions to achieve its specific commitments, despite the continuing difficult circumstances due to the pandemic.

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State aid: the Commission authorises a French scheme worth EUR 170 million - On 24.02.2022, the Commission authorised a French aid scheme to cover the social costs of small and medium-sized agricultural enterprises ('SMEs') whose production was affected by the frost episode from 4 to 14 April 2021. The scheme, worth a total of EUR 170 million, takes the form of tax benefits. The scheme will be open to SMEs active in primary agricultural production, more specifically in the fields of field crops, perennial crops, mixed farming, viticulture, fruit growing, horticulture and beekeeping. The scheme applies in addition to payments received from insurance companies, two existing schemes relating to the Agricultural Disaster Compensation Scheme (AS.61993) and the Additional Compensation Scheme for Farmers Insured against Climate Risks (AS.64422), approved on 17 February and 25 November 2021 respectively, and other schemes established locally. The Commission assessed the scheme under the EU state aid rules, in particular the guidelines on state aid in agriculture and forestry and rural areas. The examination revealed that the magnitude of the negative economic impact of the April 2021 freezes on agricultural SMEs is such that the coverage of the social contributions owed by these enterprises in the eligible ceilings is justified.

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Global action against Covid-19

NextGenerationEU: Commission approves extension of two Spanish schemes to support innovative projects in the forestry sector and rural areas - On 24.02.2022, the Commission approved the extension of two existing Spanish schemes to support the forestry sector and rural areas. The total budget of the two measures has been increased by EUR 4 million. The additional funds will be made available through the Recovery and Resilience Facility ('RRF')[3], following the Commission's positive assessment of the Spanish Recovery and Resilience Plan and its adoption by the Council. The aid will take the form of direct grants. The objective of the schemes is to support cooperation in forestry and rural areas between the operational groups of the European Innovation Partnership for Agricultural Productivity and Sustainability ('EIP-AGRI') and the implementation of innovative projects of general interest.

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Travelling during the pandemic - On 22.02.2022, the Commission welcomed the adoption by the Council of an updated framework for travel to the EU, following a proposal made by the Commission late last year. The updates will further facilitate travel from outside the EU to the EU and will take into account the evolution of the pandemic, the increasing spread of vaccination worldwide and the administration of booster doses, as well as the recognition of an increasing number of certificates issued by non-EU countries as equivalent to the EU Covid digital certificate. According to the updated framework agreed upon on 22 February, Member States should now also re-open the vaccination to those who have been vaccinated with a vaccine that has completed the World Health Organisation ('WHO') emergency classification process.

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European Covid digital certificate: recovery certificates can now also be issued on the basis of rapid antigenic tests - On 22.02.2022, the Commission adopted a delegated act in accordance with the Union Covid digital certificate for the issuing of recovery certificates [4] . From today, the new rules will allow Member States to issue certificates of recovery on the basis of a positive rapid antigenic test result. Previously, it was only possible to issue a certificate of recovery following a positive result of a molecular nucleic acid amplification test ('NAAT'), such as RT-PCR. In order to ensure the accuracy and reliability of the certificate, the rapid test used must be on the common EU list of rapid tests for Covid-19 and be performed by health professionals or qualified personnel. Member States may issue these certificates retroactively, based on tests performed from 1 October 2021.

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Vaccines against Covid-19

Disinformation about the coronavirus - On 22.02.2022, Commission Vice-President Jourová met with representatives of Facebook, Google, TikTok, Twitter and YouTube in view of the urgent need to address misinformation about Covid - 19 vaccines. The online platforms that signed the code of conduct on disinformation committed to dedicated reporting for the initial 6-month period, recently extended for another 6 months. Following the 10 June 2020 Joint Communication on Combating Covid-19 Disinformation, a monthly reporting programme was created to ensure accountability to the public of the efforts made by the platforms and relevant industry associations.

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EU Council

Council extends measures for the rail transport sector - On 24.02.2022, the Council, taking into account that the Covid - 19 pandemic continues to affect the level of rail traffic, extended until 30 June 2022 the emergency measures put in place in October 2020 to mitigate the effects of the pandemic on the sector. The measures, in particular, offer Member States the possibility to reduce certain infrastructure charges on railway companies, while ensuring timely reimbursements to infrastructure providers. In addition, given the unpredictable evolution of the pandemic, it was decided to extend until 31 December 2023 the Commission's powers to extend the measure if necessary by means of delegated acts for up to six months, on a case-by-case basis. Member States will continue to notify the Commission of all measures taken, and the Commission will in turn make this information public.

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European Investment Bank ('EIB')

Portugal: EIB and Banco Montepio Group to support enterprises with EUR 414m

On 24.02.2022, the EIB and the Banco Montepio Group signed a new guarantee agreement aimed at supporting Portuguese SMEs, mid-caps (up to 3,000 employees) and large enterprises (more than 3,000 employees). To this end, the EIB will provide a guarantee of EUR 116.35m to the Banco Montepio Group, enabling the Portuguese bank to grant a total of EUR 179m in working capital and investment loans, to mobilise EUR 414m in support of Portuguese companies affected by the economic consequences of the Covid-19 pandemic. The agreement is supported by the European Guarantee Fund ('EGF')[5], part of the Euro 540 billion EU package of measures adopted in response to the economic impact caused by Covid - 19.

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[1] REACT-EU is part of NextGenerationEU and provides EUR 50.6 billion of additional funding (in current prices) in 2021 and 2022 to the 2014-2020 cohesion policy programmes.

[2] Enhanced surveillance provides a comprehensive framework for monitoring economic developments and the pursuit of policies necessary to ensure a sustainable economic recovery. It allows for a regular assessment of recent economic and financial developments in Greece, as well as the monitoring of sovereign financing conditions and updates of the debt sustainability analysis. Economic developments and policies in Greece are monitored in the context of the European Semester for Economic Policy Coordination and under the enhanced surveillance framework pursuant to Articles 2 and 3 of Regulation (EU) No 472/2013.

[3] It enables the Commission to raise funds to help Member States implement reforms and investments that are in line with EU priorities and address the challenges identified in the country-specific recommendations under the European Semester of economic and social policy coordination. It makes available EUR 723.8 billion (current prices), of which EUR 385.8 billion in loans and EUR 338 billion in grants.

[4] This is a certificate stating that no more than 180 days have elapsed since the date of the first positive test result.

[5] The European Guarantee Fund (EGF) was created by the EIB Group with contributions from Portugal and other EU Member States to protect companies affected by the Covid-19 crisis.

Introductory remarks by President von der Leyen at the end of the extraordinary meeting of the European Council on 24 February 2022 - On 25.02.2022, President von der Leyen, at the end of the joint press conference with President Michel and President Macron that followed the extraordinary meeting of the European Council on 24 February 2022, said: 'President Putin has chosen to bring war back to Europe. Ukraine is suffering a real invasion, which calls into question the very foundation of our peace arrangement. But today is also the day when the European Union presents a united and united front. Last night, European leaders in unison condemned these unprovoked and heinous attacks. We must now rise to the occasion: the Kremlin will be held to account. The set of massive and targeted sanctions that European leaders approved tonight is a clear demonstration of this. The impact on the Russian economy and the country's political elite will be the most violent ever. The sanctions affect five areas: first, the financial sector; second, the energy sector; third, the transport sector; fourth, export control and the ban on export financing; and fifth, visa policy."

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Mims: the Council of Ministers approves the decree schemes for the simplifications of public transport in the Venice lagoon and for the scrapping of end-of-life vehicles - On 24.02.2022, the Council of Ministers gave its preliminary approval to two decree schemes of the President of the Republic of interest to Mims. These are the simplification decree for local public transport (Tpl) in the Venice lagoon and the decree on the establishment of the single telematic register of end-of-life vehicles to streamline scrapping procedures. More specifically, the draft decree on public transport in the Venice lagoon amends the Regulation for the safety of navigation, taking into account the specific nature of this type of transport and the environment in which it operates. The purpose of the amendment is to simplify the provisions in order to facilitate the service provided by boats sailing exclusively within the lagoon's protected waters. The draft decree also takes into account the peculiar organisation of public transport services in the lagoon area, characterised by frequent shifts of crews, frequent embarkation and disembarkation, and the continuous variation in the number of passengers on board. After preliminary approval, the opinion of the State-Regions Conference and the Council of State must be acquired. With regard to the scrapping of end-of-life vehicles, the draft decree establishes a single telematic register at the Civil Vehicle Registration Office, simplifying the procedures for scrapping and deregistration from the Public Motor Vehicle Register. In this case, after preliminary approval, the opinion of the Council of State will have to be acquired.

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Mims: Road haulage emergency - measures for the sector defined in the Energy Decree - On 24.02.2022 the Road Haulage Table concluded the definition of the measures that will become part of the Energy Decree to support the road haulage sector, which has been penalised by structural problems in the supply chain and increases in fuel costs. During the meeting between the Deputy Minister for Infrastructure and Sustainable Mobility, Teresa Bellanova, and the trade associations, the measures were shared, which in detail include 20 million euros to support the trucking sector in the cost of tolls; 5 million to implement the flat-rate deduction for undocumented expenses; tax credit equal to 15 per cent net of VAT aimed at the purchase of AdBlu for a total investment of over 29 million euros; and tax credit equal to 20 per cent net of VAT to support the purchase of LNG, with a total investment of 25 million euros. Deputy Minister Teresa Bellanova was satisfied not only with the agreement reached, but also with the start of the debate on the rules long awaited by the sector and the commitment made by the representative associations to work together to ease territorial tensions.

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Trade Associations

ETF: Transport unions call for immediate ceasefire and withdrawal of Russian army from Ukraine - Following the military escalation in Ukraine, the International Transport Workers' Federation (ITF) and the European Transport Workers' Federation (ETF) are calling for an immediate ceasefire of hostilities, the return of the conflict to a diplomatic level, and respect for international human rights and humanitarian law. They state: 'All our thoughts are with the people of Ukraine. The hearts and minds of transport workers around the world weigh heavily when we witness the outbreak of war. We know that transport workers are particularly threatened. We have received confirmed and unconfirmed reports of the military targeting transport infrastructure, changing control of airports and railways, closing airspace and ports." They also add that the ITF and ETF support UN Secretary General António Guterres' calls for a peaceful resolution of the conflict in eastern Ukraine in accordance with the Minsk agreements.

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President von der Leyen and High Representative/Vice-President Borrell condemn Russia's attack on Ukraine - On 24.02.2022, President Ursula von der Leyen and High Representative/Vice-President for Foreign Affairs Borrell gave a joint speech in which they condemned Russia's aggression against Ukraine and expressed full solidarity and support for Ukraine and its people, stating: "such use of force and coercion has no place in the 21st century". President von der Leyen also announced that the Commission is preparing a package of sanctions, which will be presented to European leaders on 24 February. The aim is to make it as difficult as possible for the Kremlin to pursue its aggressive actions, with a determined and united EU response. The package will first of all include financial sanctions that will significantly restrict Russia's access to capital markets. The Russian economy has already faced intense pressure in recent weeks, pressure that is bound to build up and sanctions will slow Russia's economic growth; increase borrowing costs and inflation; intensify capital outflows; and gradually erode the country's industrial base. In addition, Russia's access to certain technologies will be restricted, weakening Russia's technological position in key sectors.

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Covid - 19: Council extends measures for rail transport sector - On 24.02.2022, the Council extended until 30 June 2022 the emergency measures put in place to mitigate the impact of the Covid-19 pandemic on the rail sector in view of the fact that the Covid-19 pandemic continues to affect the level of rail traffic. The measures, in particular, offer Member States the possibility to reduce certain infrastructure charges on railway companies, while ensuring timely reimbursements to infrastructure providers. In addition, given the unpredictable evolution of the pandemic, it was decided to extend until 31 December 2023 the Commission's powers to extend the measure by means of delegated acts if necessary for up to six months each time. Member States will continue to notify the Commission of all measures taken, and the Commission will in turn make this information public.

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Trade Associations

ACEA: Commercial vehicle registrations: -11.1% in January 2022 - New registrations of commercial vehicles in the EU fell by 11.1% to 125,292 units in January 2022. The decline was mainly the result of lower sales of new vans. Three of the region's four key markets recorded a drop last month, with Spain seeing the steepest decline (-20.1%), followed by France (-17.0%) and Germany (-3.1%); in Italy, however, sales levels were unchanged compared to January 2021.

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