Strategies for reducing taxes: adapting to the new rules of the Tax Reform in Brazil

In this article, we explore effective strategies for reducing taxes and ensuring compliance with the new rules of the Tax Reform in Brazil. Tax planning is a recurring topic on business and family agendas, especially with the imminent tax reform in Brazil. The new regulations will significantly impact the incidence of taxes on inheritances, donations and private pension plans.

What will change in inheritances with the new rules of the Tax Reform?

The main topic is the changes to the Causa Mortis and Donation Transfer Tax (ITCMD). Currently, each Brazilian state sets its own rate, which can be fixed or progressive, with a ceiling of 8%. With the reform, the ITCMD will become progressive, increasing according to the value of the estate.

In addition, the ITCMD will also be applied to open-ended private pension plans, including Free Benefit Generator Plans (PGBL) and Free Benefit Generator Life (VGBL). Amounts invested more than five years ago in the VGBL will not be taxed in the event of death.

Another significant change is the inclusion of ITCMD on inheritances and donations of assets abroad, a tax that until now did not exist for beneficiaries domiciled in Brazil. The Treasury estimates that the ITCMD represents 0.4% of the national tax burden, in line with the average for OECD countries.

Strategies to Minimize the Impacts of Tax Reform Creating Family Holdings: One of the main strategies is to structure family holdings. For those who own a lot of real estate, for example, it is possible to set up a real estate holding company, transferring the real estate to the company and leaving the holding shares to the heirs. Allocating resources abroad: For larger assets, allocating part of the resources abroad can be an alternative. This practice, if done legally and with income tax declared, helps to mitigate the “Brazil risk”. Lifetime Gifting: Anticipating the transfer of assets while you are still alive is another strategy. With the tax reform, donating real estate and other assets before the new rules come into force can minimize future tax impacts. Specialist advice: It is essential to rely on the advice of professionals who specialize in tax and succession planning.

The changes brought about by the tax reform require a careful review of estate planning. Anticipating and properly structuring the succession of assets can lead to significant tax savings and guarantee financial security for generations to come.

Recent developments in the legal arena in India

A Newsletter by SKAA Advocates and Solicitors, India

I. Criminal LawsNew Indian Criminal Laws- The Indian Penal Code, 1860, Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872 have been replaced by the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) w.e.f 1st July 2024. These New Criminal Laws apply prospectively and aim to re-vamp the Indian criminal justice paradigm by consolidating the traditional provisions and making them more relevant, reformative, contemporary, and concise.

Some key highlights and their impact1. New dedicated provisions and penalties for offenses such as organized crime, hacking, identity theft, and online harassment, strict timelines for investigations and trials, introduction of community service as a punishment etc.2. Integration of Technology in legal procedures- Service of summons, warrants in digital form by Courts, recording of evidences electronically as a mandatory requirement.3. Statutory recognition of Zero FIR and e-FIR- an FIR can now be registered at any police station irrespective of the location of crime. This eliminates jurisdictional hurdles. An FIR can also be lodged through electronic means, thereby facilitating easy access.4. Expansive reach- Section 48 of BNS stipulates that abetting a criminal act occurring within India from beyond India, will constitute an offence. The implication of this provision may potentially result in roping in foreign entities/nationals alleged to have had far-off/questionable involvement to crimes committed within India through advice, resources, encouragement etc.5. Attachment of property for a wider net of offenses- Section 107 of BNSS empowers Indian authorities to issue orders, including ex-parte orders, for attachment of properties derived from commission of any offense under the BNS.

II. Data Protection laws

The Digital Personal Data Protection Act, 2023 (“DPDPA”) received the President of India’s assent on 11th August, 2023, although the effective date is yet to be notified soon. Presently, the Government is in the process of framing major rules under the DPDPA, which are likely to be published soon.This legislation is slated to replace certain provisions of the existing Information Technology Act, 2000 and the entire Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.The DPDPA is triggered when digital personal data is processed within India OR outside India where data is processed for any activity is connection with offering goods/services to subjects within India.The DPDPA broadly follows a similar model and has some analogous principles as that of the UK’s General Data Protection Regulations (‘GDPR’).It encapsulates provisions governing Data Fiduciaries and Data Principals (equivalent to Data Controller and Data Subject as per the GDPR respectively), such as ‘legitimate uses’ for processing personal data, consent, rights of data principles, cross border data transfers (with exceptions), etc which have similar features as that of GDPR. However, without the procedural guidance of Rules under the Act, there are some significant gaps as to the steps required to be compliant under this Act.The penalties for non-compliance under the DPDPA currently range from INR 500 million to INR 2.5 billion.III. Foreign Exchange Management Law

A. International Trade Settlements in INRThe settlement for export and import of goods in INR was primarily introduced by the RBI in July 2022 as a measure to promote internationalization of the Indian currency and bilateral global trade, with an emphasis on trade from India.Under this mechanism, trade settlements take place through Special Rupee Vostro Accounts (SRVAs) opened by correspondent banks of the partner trading country, in India.This arrangement also inter alia permits Indian exporters to receive advance payment in INR and ‘set-off’ of export receivables against import payables in respect of the same overseas buyer and supplier (subject to RBI conditions).Since its introduction, the significance of this mechanism has only gained more attention, with India completing its first ever import payment, for crude oil purchased from the UAE, in INR. In March 2024, RBI signed a Memorandum of Understanding (MoU) with the Bank of Indonesia for instituting a framework to promote the use of local currencies i.e., Indian Rupees (INR) and the Indonesian Rupiah (IDR) for cross-border transactions.As on date, RBI has allowed 22 countries to open SRVAs with Authorised Dealer- Category-1 Banks in India, including Belarus, Bangladesh, Fiji, Germany, Israel, Malaysia, Maldives, Mauritius, Oman, Russia, Seychelles, Singapore, Sri Lanka.

B. Amendments to Foreign Exchange Management Rules

Key amendments to the Foreign Exchange Management (Non-debt Instruments) Rules, 2019 (‘NDI Rules’)- notified on 16th August 2024Easing of FDI-ODI swaps- Previously, a Foreign Resident (FR) was eligible to acquire equity instruments of an Indian company by way of a swap of equity instruments of another Indian company only. This meant that swapping Indian securities with foreign securities required RBI approval.Vide the amendment, it is now permitted to swap for equity capital of a foreign entity subject to compliance with the Foreign Exchange Management (Overseas Investment) Rules 2022 (‘OI Rules’) and regulations specified by RBI.The term "equity capital" under the OI Rules has a broader definition. It includes perpetual capital, or fully convertible instruments of a foreign entity (including LLCs, LLPs, investment funds, etc.).As a result, this change provides flexible structuring options by facilitating global expansion opportunities to both Indian companies and foreign entities wishing to relocate their structures between India and abroad.Nevertheless, considerations around eligibility limits etc., for overseas investments would continue to apply notwithstanding this relaxation.Relaxation of norms for Foreign Portfolio Investors - As per the erstwhile position, Foreign Portfolio investment (FPI) in an Indian Entity under the FDI route was capped at the lower of - 49% of the paid-up capital of an Indian entity OR the sectoral/statutory cap.Vide the amendment, the said 49% cap has been removed. Now, aggregate FPI in an Indian entity can extend up to the sectoral/statutory cap without needing government approval or sectoral compliance, provided that it does not lead to transfer of ownership and/or control to a person resident outside India. Other investments by a FR, however, shall remain subject to Government approval and compliance of sectoral conditions.Foreign investment up to 100% under automatic route in white label ATM operations- The Amendment aligns the NDI Rules to the Consolidated FDI Policy of 2020, which permits foreign investment in white label ATM operations (essentially ATMs of non-bank entities) up to 100% subject to adherence of criteria outlined in the NDI rules. Authorized Dealer Banks can allow Non- Residents to maintain interest-bearing accountsOn 6th May, 2024, the amendments issued by RBI in the Foreign Exchange Management (Deposit) Regulations, 2016 came into force. As per these amendments, Indian Authorized Dealer Banks (ADs) shall be permitted to allow non-residents to maintain interest-bearing accounts in INR or foreign currencies for posting/collecting margin in India for a valid derivative contract as outlined in the Foreign Exchange Management (Margin for Derivative Contracts) Regulations, 2020. Direct listing on international exchangesAmendments to the NDI rules and introduction of Companies (Listing of equity shares in permissible jurisdictions) Rules, 2024 (“LEAP Rules”) together provide a legal framework for Indian public companies to issue and list their shares in permitted international stock exchanges, which are, presently, the India International Exchange and the NSE International Exchange. Scheme for trading and settlement of Sovereign Green Bonds (SGBs) within India’s International Financial Services Centre (IFSC)With a view to facilitate wider non-resident participation in such instruments, the RBI has, w.e.f 29th August 2024, introduced a Scheme to permit foreign investors to invest in SGBs. Apart from persons residing outside India, International Banking Units (IBUs) of foreign banks are also eligible participants under this Scheme.The Scheme allows investors to engage in primary auctions and secondary market transactions, following the RBI’s guidelines. Investors can place competitive bids in primary auctions through authorized clearing corporations, which will act as aggregators. The settlement of such securities will be subject to the RBI's prescribed processes to ensure transparency.

IV. Taxation lawsThe Union Budget for 2024-25 introduced on 23rd July 2024 by the Finance Minister of India. The Budget places strong emphasis on job creation, skilling for youth, women empowerment and ease of doing business.On the taxation front, some of the key highlights include-

Abolition of Angel Tax – An Indian company issuing shares (with subscription price in excess of prescribed value) was liable to pay such tax - deterring their fund-raising capability. The Budget seeks to abolish Angel Tax for all classes of investors. Reduction in corporate tax rate for foreign companies- the corporate tax rate is reduced from the existing 40% to 35% to encourage investment. Abolition of Equalization Levy (EL)- Currently, a non-resident e-commerce operator is subjected to EL @ 2% from e-commerce services/supply. The Budget proposes to abolish the EL of 2% in such cases, with effect from 1st August, 2024. Buy-back of shares to be treated as Dividend- W.e.f 1st October 2024, the Budget proposes to treat buy-back of shares as ‘dividend’ income- taxable at the hands of the shareholders. The Indian company to apply ‘witholding tax’ at applicable rates/beneficial treaty rate in case of non-residents.

V. Bar Council of India proposes to amend rules for foreign lawyers/ firms to practice on Indian soilThe Bar Council of India (BCI) has announced plans to notify amended regulations governing the entry of U.K. lawyers and law firms into the Indian legal market. This move is in pursuance to ongoing dialogue regarding some key issues in the BCI’s Rules for ‘Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India’ notified last year. These rules were introduced with an aim to establish a reciprocal relationship between Indian and foreign legal professionals.In its statement, the BCI had announced that they have participated in discussions regarding a joint Memorandum of Understanding with the Law Society of England and Wales & Bar Council of England and Wales and that amended regulations are expected to be notified soon.

EXEMPTION FROM PAYMENT OF INCOME TAX FOR INCOME OBTAINED BY COOPERATIVE ASSOCIATIONS

Decree No. 4.976, dated August 12, 2024, was published in Official Gazette No. 42.939 of the same date. Said Decree exempts the net taxable income of territorial source obtained by Cooperative Associations from payment of income tax (the “Decree”). Below are some of the most important aspects of the Decree:  

Beneficiaries:

The beneficiaries will be the Cooperative Associations organized in accordance with the provisions established in the Decree with the Force of Special Law of Cooperative Associations, which:

Must update their Sole Fiscal Information Registry, in order to which they must file the valid Certificate of Compliance issued by the National Superintendence of Cooperatives. Must file the annual declaration of taxed and exempt overall net income, as appropriate, in the terms and conditions established in the Regulations to the Income Tax Law. Loss of the exemption benefit:

The beneficiaries that fail to meet the requirements and perform the obligations established in Decree, as well as in the Decree with the Status, Value, and Force of Income Tax Law, its Regulations, and other applicable rules will lose the exemption benefit.

Losses resulting from exempted activity:

The losses resulting from the exempted activity may not be imputed in any fiscal year to the income resulting from the activity taxed with income tax.

In the cases in which the Cooperative Associations perform activities taxed with income tax and exempted in the terms of the Decree, the common costs and deductions applicable to the revenues resulting from said income will be proportionally distributed.

Duration:

The period of duration of the exemption benefit will be one (01) year as from the date of publication in the Official Gazette of the Bolivarian Republic of Venezuela, which period may be extended for one year. The exemption will be applied to the fiscal years in progress when the Decree becomes effective. 

In order to access the Decree, please click here.

TAXA Presidential Decree extended until 12/09/2024 the effectiveness of Decree No. 4.525, published in Official Gazette of 06/09/2021 (Decree of Optimization and Revitalization of Exportation Processes). Therefore, the exemptions from the legal regimes for exportation indicated in said Decree No. 4.525 continue to be in effect, in the terms and conditions established in the same. (Official Gazette No. 6.820 Extraordinary of 07/01/2024. Decree No. 4.970. Entry into force: As from 06/09/2024). The National Integrated Service of Customs and Tax Administration (Servicio Nacional Integrado de Administración Aduanera y Tributaria - SENIAT) authorized the issue and circulation of liquor warranty seals. (Official Gazette Administrative of Ruling 07/12/2024. No. SNAT/2024/000046. Entry into force: Upon publication in the Official Gazette). A Presidential Decree set at zero percent (0%) the rate of the Tax on Large Financial Transactions for transactions made by the following taxpayers: (i) Legal persons and unincorporated economic entities, categorized as special taxpayers, for the payments made by them to the debit of their accounts with banks or financial institutions; (ii) Legal persons and unincorporated economic entities, categorized as special taxpayers, for the payments made by them without the intervention of financial institutions. Cancellation is understood as the offset, novation and extinction of debts; (iii) Legal persons and unincorporated economic entities, legally related to a legal person or unincorporated economic entity, categorized as special taxpayer, for the payments made by them to the debit of their accounts with banks or financial institutions or without the intervention of financial institutions; (iv) Natural and legal persons and unincorporated legal entities that without being legally related to a legal person or unincorporated economic entity, categorized as special taxpayer, make payments for their account, to the debit of their accounts with banks or financial institutions or without the intervention of financial institutions. (Official Gazette No. 6.821 Extraordinary of 07/12/2024. Decree No. 4.972. Entry into force: As from 07/15/2024).

MISCELLANEOUSThe National Assembly enacted the Law on Promotion of Non-Oil Exports. The purpose of the Law is to establish and develop mechanisms intended to facilitate the exportation of non-oil goods and services, generated in the Bolivarian Republic of Venezuela, in order to increase Venezuelan products’ participation and competitiveness in international markets, according to the commitments and obligations undertaken in the frame of the multilateral, regional, and bilateral trade mechanisms and for the country’s integral and sustainable development. Title IV of the Decree with the Status, Value and Force of Law of Banco de Comercio Exterior is repealed, as well as the other provisions of said Decree related to the promotion of exports and all provisions contrary to the Law on Promotion of Non-oil Exports. (Official Gazette No. 6.824 Extraordinary of 07/18/2024. Entry into force: Upon publication in the Official Gazette).

The Ministry of the Popular Power for National Trade declared the following standards as Venezuelan COVENIN Standards of national character; the content of said standards will be published in the institutional web site of the Deconcentrated Service of Standardization, Quality, Metrology, and Technical Regulations (Servicio Desconcentrado de Normalización, Calidad, Metrología y Reglamentos Técnicos - SENCAMER) (www.sencamer.gob.ve). (Official Gazette of 07/10/2024. Entry into force: Upon publication in the Official Gazette).

Resolution No.Venezuelan COVENIN Standard No.It substitutes for Venezuelan COVENIN Standard No.080/20245035:2024 “Food for celiac persons, non-celiac gluten-sensitive persons, and wheat allergic persons.”081/ 20241431:2024 “Bottled drinking water. Requirements. (1st. Review).”1431:1982

Lo scorso 12 agosto è stato pubblicato nella Gazzetta Ufficiale dell’Unione europea il Regolamento (UE) 2024/2019 del Parlamento europeo e del Consiglio dell’11 aprile 2024 (“Regolamento”) recante una serie di modifiche sostanziali e/o procedurali al protocollo n. 3 sullo statuto della Corte di giustizia dell’Unione europea (“Statuto” e “Corte di giustizia”).

Si riporta di seguito una sintesi delle modifiche introdotte dal Regolamento.

Attribuzione al Tribunale della competenza pregiudiziale in materie specifiche

Il Regolamento introduce l’art. 50-ter al fine di attribuire al Tribunale dell’Unione europea (“Tribunale”) la competenza a conoscere delle domande di pronuncia pregiudiziale di cui all’art. 267 del TFUE rientranti in una o più delle seguenti materie:

il sistema comune di imposta sul valore aggiunto; i diritti di accisa; il codice doganale; la classificazione tariffaria delle merci nella nomenclatura combinata; la compensazione pecuniaria e l’assistenza dei passeggeri in caso di negato imbarco o di ritardo o cancellazione di servizi di trasporto; e il sistema di scambio di quote di emissione di gas a effetto serra.

Con riferimento ai punti da (a) a (d), il considerando 9 del Regolamento chiarisce che “Tali materie riguardano, al momento dell’adozione del presente regolamento, questioni quali la determinazione della base imponibile dell’imposta sul valore aggiunto o le condizioni per l’esenzione dal pagamento di tale imposta; l’interpretazione del regime generale delle accise e del quadro relativo alle accise sull’alcool, sulle bevande alcoliche, sul tabacco, sui prodotti energetici e sull’elettricità; gli elementi in base ai quali i dazi all’importazione o all’esportazione sono applicati nell’ambito degli scambi di merci, quali la tariffa doganale comune, l’origine e il valore in dogana delle merci; le procedure di importazione ed esportazione, comprese l’insorgenza, la determinazione e l’estinzione di un’obbligazione doganale; regimi doganali specifici; il regime di franchigie doganali, nonché l’interpretazione di voci tariffarie specifiche e i criteri per la classificazione di talune merci nella nomenclatura combinata di cui all’allegato I del regolamento (CEE) n. 2658/87 del Consiglio”.

Con riferimento al punto (e), il considerando 10 del Regolamento chiarisce che tali materie “riguardano questioni che, al momento dell’adozione del presente regolamento, sono disciplinate dai regolamenti (CE) n. 261/2004 [trasporto aereo], (UE) n. 1177/2010 [trasporto marittimo], (UE) n. 181/2011 [trasporto con autobus] e (UE) 2021/782 [trasporto ferroviario] del Parlamento europeo e del Consiglio”.

Con riferimento al punto (f), il considerando 10 del Regolamento chiarisce che tale sistema “al momento dell’adozione del presente regolamento, è disciplinato dalla direttiva n. 2003/87/CE del Parlamento europeo e del Consiglio e dagli atti adottati sulla base di tale direttiva”.

Fermo quanto precede, ai sensi del comma 2 del nuovo art. 50-ter, la Corte di giustizia conserverà la competenza a conoscere delle domande di pronuncia pregiudiziale che sollevino “questioni indipendenti di interpretazione del diritto primario, del diritto internazionale pubblico, dei principi generali del diritto o della Carta dei diritti fondamentali dell’Unione europea”.

In ogni caso, ai sensi del comma 3 della nuova disposizione, le domande di pronuncia pregiudiziale di cui all’art. 267 andranno presentate dinanzi alla Corte di giustizia. Sarà quest’ultima – “quanto prima possibile” e secondo le modalità previste dal proprio regolamento di procedura – a valutare se la domanda rientri esclusivamente in una o più materie attribuite alla competenza del Tribunale e, di conseguenza, a trasmetterla al Tribunale.

Partecipazione al procedimento da parte del Parlamento europeo, del Consiglio e della Banca Centrale Europea

Il Regolamento modifica l’art. 23 dello Statuto al fine di prevedere che, nel caso in cui sia sollevata una questione pregiudiziale, la decisione del giudice nazionale che sospende il procedimento debba essere notificata dalla cancelleria della Corte – oltre che alle parti in causa, agli Stati membri, alla Commissione, nonché all’istituzione/organo/organismo dell’Unione che abbia adottato l’atto di cui si contesta la validità o l’interpretazione, come già previsto dall’art. 23 – anche al Parlamento europeo, al Consiglio e alla Banca centrale europea.

Ai sensi del nuovo comma 2, qualora ritengano di avere “un interesse particolare nelle questioni sollevate dalla domanda di pronuncia pregiudiziale”, entro 2 mesi dalla notifica il Parlamento europeo, il Consiglio e la Banca centrale europea potranno presentare memorie od osservazioni scritte.

Ai sensi del nuovo comma 3, le memorie o le osservazioni scritte presentate da un interessato saranno pubblicate sul sito Internet della Corte di giustizia “entro un termine ragionevole” successivamente alla chiusura del caso, a meno che tale interessato non si opponga alla pubblicazione delle proprie memorie od osservazioni scritte.

Elezione di avvocati generali per il trattamento delle domande di pronuncia pregiudiziale devolute alla competenza del Tribunale

Il Regolamento introduce l’art. 49-bis dello Statuto al fine di prevedere che, nel trattamento delle domande di pronuncia pregiudiziale, il Tribunale sarà assistito da uno o più avvocati generali, eletti per un periodo di 3 anni – rinnovabile una volta – tra i giudici del Tribunale.

Istituzione della sezione intermedia del Tribunale

Il Regolamento modifica l’art. 50 dello Statuto al fine di prevedere, con riferimento alla composizione del Tribunale, l’istituzione di una sezione intermedia tra le sezioni composte da cinque giudici e la grande sezione.

Alla luce della formulazione del nuovo art. 50, il Tribunale si riunirà in: (a) sezioni composte da 3 o 5 giudici; (b) sezione intermedia; e (c) grande sezione. Inoltre, in coerenza con l’attuale formulazione, in alcuni casi il Tribunale potrà statuire nella persona di un giudice unico.

La nuova disposizione prevede che, nei procedimenti aventi ad oggetto una questione pregiudiziale, il Tribunale si riunirà in sezione intermedia su richiesta di uno Stato membro o di un’istituzione dell’Unione che sia parte del procedimento.

Rinvio della causa pregiudiziale alla Corte di giustizia o al Tribunale

Il Regolamento modifica l’art. 50 dello Statuto al fine di prevedere che, in linea con quanto previsto in relazione alla trattazione dei ricorsi:

quando il Tribunale constata di essere incompetente a conoscere di una domanda di pronuncia pregiudiziale, questo dovrà rinviare la causa alla Corte di giustizia; quando la Corte di giustizia constata di essere incompetente a conoscere di una domanda di pronuncia pregiudiziale, questa dovrà rinviare la domanda al Tribunale, che in tale ipotesi non potrà declinare la propria competenza.

In relazione al suddetto meccanismo di rinvio, il considerando 18 del Regolamento chiarisce inoltre che “il Tribunale può, a norma dell’articolo 256, paragrafo 3, secondo comma, TFUE, rinviare alla Corte di giustizia una causa che rientra nella sua competenza, ma che richiede una decisione di principio che potrebbe compromettere l’unità o la coerenza del diritto dell’Unione”.

Estensione della procedura di ammissione preventiva delle impugnazioni

Il Regolamento sostituisce l’art. 58-bis al fine di estendere la procedura di ammissione preventiva delle impugnazioni da parte della Corte di giustizia:

alle impugnazioni relative a una pronuncia del Tribunale avente ad oggetto la decisione di una commissione di ricorso indipendente di un organo o di un organismo dell’Unione che, alla data del 1° maggio 2019, disponeva di tale commissione di ricorso ma non risultava espressamente previsto dall’art. 58-bis nella sua attuale formulazione.

Trattasi dei seguenti organi/organismi dell’Unione: (a) Agenzia dell’Unione europea per la cooperazione fra i regolatori nazionali dell’energia; (b) Comitato di risoluzione unico; (c) Autorità bancaria europea; (d) Autorità europea degli strumenti finanziari e dei mercati; (e) Autorità europea delle assicurazioni e delle pensioni aziendali e professionali; e (f) Agenzia dell’Unione europea per le ferrovie; e

al contenzioso relativo all’esecuzione di contratti contenenti una clausola compromissoria. Introduzione della procedura di consultazione in vista della presentazione di una domanda o di una proposta di modifica dello Statuto

Il Regolamento introduce l’art. 62-quinquies al fine di prevedere che, prima di presentare una domanda o una proposta di modifica dello Statuto, la Corte di giustizia o, se del caso, la Commissione debba procedere allo svolgimento di “ampie consultazioni”.

Il Regolamento entrerà in vigore il 1° settembre 2024 e prevede un regime transitorio in forza del quale:

le domande di pronuncia pregiudiziale pendenti dinanzi alla Corte di giustizia al 1° ottobre 2024 saranno in ogni caso trattate dalla Corte di giustizia medesima; le impugnazioni avverso: le decisioni del Tribunale vertenti su una decisione di una commissione di ricorso di uno degli organi / organismi dell’Unione di cui alle lettere da (a) a (e) del precedente punto 6, nonché le decisioni relative all’esecuzione di un contratto contenente una clausola compromissoria

di cui la Corte di giustizia risulti investita al 1° settembre 2024 non saranno soggette alla suddetta procedura di ammissione preventiva delle impugnazioni.

Entro il 2 settembre 2025, la Corte di giustizia pubblicherà e aggiornerà un elenco di esempi che illustrano l’applicazione del suddetto art. 50-ter dello Statuto.

Entro il 2 settembre 2028, la Corte di giustizia trasmetterà al Parlamento europeo, al Consiglio e alla Commissione una relazione sull’attuazione del Regolamento, eventualmente corredata da una proposta di atto legislativo di modifica dello Statuto, in particolare al fine di rivedere l’elenco delle materie specifiche devolute alla competenza pregiudiziale del Tribunale.

LAW ON PROMOTION OF NON-OIL EXPORTSThe Law on Promotion of Non-Oil Exports was issued by the National Assembly and published in Official Gazette No. 6.824 Extraordinary, dated July 18, 2024 (the “Law”). The purpose of the Law is to establish and develop mechanismsintended to facilitate the exportation of non-oil goods and services, generated in the Bolivarian Republic of Venezuela, in order to increase Venezuelan products’ participation and competitiveness in international markets, according to thecommitments and obligations undertaken in the frame of the multilateral, regional, and bilateral trade mechanisms and for the country’s integral and sustainable development.Below are some of the most significant aspects of the Law:1. FORMATION AND ACCESS TO THE INTERNATIONAL MARKETThe State will implement a national plan of integral formation that promotes an exporting vision, as well as education in the administrative, managerial, financial, technical-scientific and other important areas for the diversification of exports. Also, the National Executive must: i) Take the necessary actions to promote access to and exportable offer of non-oil goods and services, in order to further the commercialization of the same in the international markets; ii) Resort to different commercial promotion instruments; and iii) Implement measures and incentives that encourage the production and exportation of non-oil goods and services by the communes, small and medium-sized industries, and startups.2. SIMPLIFICATION OF PROCESSESThe National Executive may suppress all administrative processes that are not essential for the development of exportation. To that end, the Executive may optimize and automate the administrative processes of the exporting activity, giving celerity to the compliance with the requirements established in the legal frame, facilitating the registration and control of the same by means of expeditious verification mechanisms, and establishing reasonable maximum periods of time for carrying out the processes; it may issue regulations on the information and communication systems and technologies applicable to the administrative processes relating to exports; and it may adopt mechanisms for supervision and control in relation to the simplification of the administrative processes, establishing the necessary periods of time for the implementation of the same.3. Sole Foreign Trade WindowThe Ventanilla Única de Comercio Exterior (VUCE) (Sole Foreign Trade Window) is created as a technological tool for the centralization and digital management of the information and documentation necessary for the exporting process. The natural or legal persons interested in exporting non-oil goods and services must be registered with the VUCE and obtain the relevant certificate, as an essential requirement to perform any operation in the area, and to have access to the benefits and incentives established in the Law.The agencies and entities of the National Government with competence in exportation matters must incorporate into the platform the mechanisms allowing for the obtainment of the permits required for the exportation of non-oil goods and services, within a period of ninety (90) days following the entry into force of the Law. After said period of time, no authority may establish any permit that may not be processed through the VUCE as a requirement for exportation.

Rate for use of VUCE: The use of VUCE will be subject to the payment of a rate per each kind of process, in an amount of bolivars equivalent to up to one hundred and fifty (150) times the official rate of exchange of the currency with the highest value, as published by the Venezuelan Central Bank (VCB). The Ministry of Economy, Finance, and Foreign Trade will establish, by Resolution, the amount of the rate applicable to each type of process.4. GENERAL DECREE OF EXPORT DUTIESThe National Executive will publish the “General Decree of Export Duties”, which will comprise all duties required by the agencies and entities of the Public Administration for the processes required in order to export non-oil goods and services. The President of the Republic may exempt the payment of the duties in relation to the processes and services required for the exportation.5. TAX, FINANCIAL, AND OTHER INCENTIVESThe National Executive may establish tax incentives that reduce or remove the tax burden on the producers with non-oil exporting potential. For purposes of the Law, the incentives are:Draw Back: The Executive will establish a procedure for determination, verification, certification, payment and competent authority in order to expeditiously carry out the Draw Back of non-oil exports. As an exception, the Executive may make the Draw Back of other national taxes for non-oil exportation.Strategic production sectors: The President of the Republic may establish non-oil export strategic productive sectors with special economic incentive regimes, oriented to productive activities with a high national added value.Credit insurance: The necessary measures to facilitate the establishment of a credit insurance mechanism for non-oil exportation will be adopted, with the purpose of covering the risks of lack of payment of the services or goods sold to abroad.Financial incentive: The Executive will further public policies that facilitate access to financing for the acquisition of machinery, raw material, and consumable supplies that are intended to productive processes with non-oil exportationpurposes.6. EXPORT PROMOTION AGENCYThe Agencia de Promoción de Exportaciones (APE) (Export Promotion Agency), assigned to the Ministry of Economy, Finance, and Foreign Trade, is created. It will be the competent level of authority for promoting the exports and advancing the positioning towards international markets of non-oil goods and services.Although the Banco de Comercio Exterior will be the specialized financial institution for the financing of the exportation of non-oil goods and services, its functions in the area of promotion of exports will be assumed by the APE. Also, the National Fund for Exportation is created. It is assigned to and administered by the APE, with the purpose of financing the activities related to the promotion of the exportation of non-oil goods and services. Said entity will obtain its funds, among others, from a contribution of up to zero point five percent (0,5 %) of the value of the imports, payable upon the elapsing of thirty (30) days following the publication in the Official Gazette of the Resolution issued by the Ministry of Economy, Finance, and Foreign Trade. The contribution will be paid by the relevant importers, at the time of payment the import customs duty.7. CENTRO NACIONAL DE COMERCIO EXTERIOR AND CORPORACIÓN VENEZOLANA DE COMERCIO EXTERIOR. (NATIONAL CENTER OF FOREIGN TRADE AND VENEZUELAN CORPORATION OF FOREIGN TRADE)The Centro Nacional de Comercio Exterior (National Center of Foreign Trade) will be suppressed. Its functions will be assumed by the Ministry of the Popular Power for Economy, Finance and Foreign Trade.Likewise, the functions in the area of centralization, simplification, and facilitation of exportation of non-oil goods and services, attributed to the Corporación Venezolana de Comercio Exterior (Venezuelan Corporation of Foreign Trade), will be assumed by the Ministry of Economy, Finance, and Foreign Trade.The Law became effective upon publication in the Official Gazette.

EXECUTIVE SUMMARY

The Artificial Intelligence Act (Regulation (EU) 2024/1689 or the “AI Act”) integrates into the European legislative framework with the aim of establishing a harmonized set of rules for the use of artificial intelligence within the European Union. Proposed in 2021 by the European Commission and adopted on May 21, 2024, by the Council of the European Union, the AI Act is a fundamental part of the EU’s digital strategy, aiming to promote innovation and ensure safe and responsible use of AI technologies. It provides, indeed, the EU with the most advanced regulation on Artificial Intelligence (“AI”) among all the major geopolitical players in the world, aiming at ensuring the generalized application to all AI systems throughout the main industries and the development of safe and trustworthy AI systems.

While some countries have set forth rules to deal with specific issues where AI is involved, the AI Act takes an innovative - and more wholesome - approach. It provides a specific definition of AI, which delimits its scope of application. Then, it classifies specific developments of AI systems into four levels of risk (i.e. the risk-based approach), each one imposing specific duty to developers. AI systems classified in the unacceptable risk category (such as governmental social scoring) are prohibited. High risk systems must be closely monitored by the European institutions and must be subject to risk assessment and risk mitigation practices. Limited risk systems must undergo public disclosure of relevant information to enhance their transparency. Lastly, minimal risk AIs (the category that counts most types of AI) remain free to use. The international nature of the AI Act and its all-embracing regulatory ambition aim at influencing positively other international players such as the United States and China.

The AI Act, being fully and directly applicable in all the MSs, interacts with other regulations and provisions such as the General Data Protection Regulation (“GDPR”), the Cybersecurity Act, and the Digital Services Act, creating a coherent and comprehensive regulatory environment covering various aspects of digital technologies and data protection. In addition, few States already have some kind of legislations that directly involve AI, Greece being the most remarkable example. Others have a mix of different legal sources that directly or indirectly influence the development of AI, setting forth provisions that might impact the AI future development. Moreover, some States have already taken action to complement the AI Act’s provisions, introducing a stricter regime for some specific technologies while others like France and Spain, are still considering the need of introduce complementary legislation to avoid risks related to errors in AI-generated decisions, or cybersecurity issues.

While individual countries within the European Union were not directly providing funding specifically earmarked for compliance with the AI Act itself, as it primarily focuses on regulatory frameworks rather than direct funding initiatives, countries like Switzerland, Sweden, France, Germany and Hungary and the EU as a whole have been actively investing in AI-related research, development, and innovation through various programs and funding mechanisms. These initiatives are generally aimed at supporting the broader digital transformation goals of the EU, which includes enhancing AI capabilities and competitiveness.

But what is the future of the concrete application of the AI Act? To answer this question mark, it is needed to dig into the preliminary characteristics of individual States as well as their potential intervention in terms of finance by asking: (i) Do States already regulate AI at national level? (ii) Do they plan to complement, or even enhance, the AI Act’s provisions? (iii) Do they want overall to financially support the development of AI systems?

The following analysis provides a critical overview of the most relevant countries in Europe, namely Albania, Belgium, Bulgaria, Cyprus, France, Germany, Greece, Hungary, Italy, North Macedonia, Portugal, Romania, Serbia, Sweden, Switzerland and Spain.

***

Albania

Albania is gradually integrating AI into its digital programs to enhance efficiency and innovation in the public sector. Law 87/2923 ratifies the agreement for the adhesion to the “Digital Europe” program, which focuses on advanced digital skills in general, though specific details on AI are not set forth. Law 43/2023 regulates electronic public services that do not require the physical presence of the applicant, while the Decision of the Council of Ministers No. 370/2022 approves the Intersectoral Strategy “Digital Agenda for Albania”, which promotes AI to improve public services, AI integration in the public sector, and data management. It also established a High-Performance Computing Center. Unfortunately, official information on governmental funding of AI is not yet available.

Belgium

In Belgium there isn’t a specific regulation on AI. However, Collective Bargaining Agreement No. 39 is applicable to these systems. The bargaining requires businesses with more than 50 employees to preemptively inform and consult trade unions, if they invest in technologies that impact on 10% of the personnel, or more. Additionally, the collective labor agreement enacted by the Royal Decree of 21 February 2024 in the banking sector makes it mandatory to train workers in the use of AI. Additionally, acts and resolutions adopted by the Belgian legislative branches regulate the use of AI in sectors such as defense, public administration and automotive (especially relevant is the permission to run tests on automated vehicles). Government funding is split into regional and state levels. The Flemish region allocated 32 million euro for AI Research and Development. It also set forth fiscal incentives for supporting the cost of labor. On the other side, the Walloon region launched the “Application and Research for Trusted Artificial Intelligence” project for the development of AI systems that enhance the competitiveness of Walloon’s businesses and awarded it 32.3 million euro. Brussels also offers many grants and subsidies to businesses in the AI industry. These three regional levels all complement the Federal programs, which mostly invest in defense.

Bulgaria

The Bulgarian Government adopted the “Concept for the Development of Artificial Intelligence in Bulgaria until 2030”, which recommends conducting a detailed analysis for a legislative proposal to be carried out only after the entry into force of the AI Act. No proposals will be forwarded until then. In the meantime, Bulgaria plans to use the European Structural Funds, the “Horizon 2020” programs, the National Recovery and Sustainability Plan, and the state budget to fund projects in the AI sector. Moreover, Bulgaria established the “Institute for Computer, Science, Artificial Intelligence and Technology” (“INSAIT”) and invested 85 million euro in it through the Ministry of Education and Science. The INSAIT is set to be the most advanced research institution in Eastern Europe, as it can rely on world-class partnerships with the most important players in the field, such as Switzerland’s “ETH” in Zurich and “EPFL” in Lausanne (two prestigious technical universities), as well as donations by Google, Amazon Web Services, DeepMind, SiteGround, VMware and other tech entrepreneurs.

Cyprus

Cyprus declared that the AI Act will be the first legislation that directly regulates AI. It presented a Strategic Plan for 2024-2026 which has allocated 282 million euro until 2026 for digitalization in general, including AI. However, much information on the development of AI in the country is lacking.

France

France’s own regulation of AI systems mostly revolves around the GDPR, and the “Loi Informatique et Libertés” of 6 January 1978, which apply to the processing of personal data. However, France is one of those countries that also legislate on more specific applications of AI systems, namely automated decisions. Individuals subject to those decisions have a right to obtain a human review of their personal situation, to express their point of view, to obtain a precise motivation in support for the decision, but also to challenge it (in line with Article 22 of the GDPR). On 12 September 2023, French representatives of the Assemblée Nationale proposed a legislation to regulate copyright-related issues, but the proposal was deemed unfeasible, and it was blocked. In 2021, President Emmanuel Macron launched its France 2030 plan, investing 2,5 billion euro in AI Research and Development. On 19 September 2023, the Government established the “Generative Artificial Intelligence Committee” to provide better guidance to the Cabinet for its decisions in the AI sector.

Greece

In Greece, Law 4961/2022 covers multiple technological developments, including smart contracts, the Internet of Things and AI. Only a few modifications are required for the Law to be fully compatible with the AI Act, which testifies Greece’s ability to legislate carefully in the area. In terms of Government funds, the Ministry of Digital Governance issued between 150 and 200 million euro for the development of AI.

Germany

Germany declared that the AI Act will be the first legislation that directly regulates AI. In 2018, Germany adopted a federal strategy for AI, significantly increasing the invested funds in the sector. Indeed, the Federal Ministry of Education and Research annual budget for technology investment increased by 20 per cent since 2017, reaching 1,6 million euro in the current legislature. These funds will be invested in eleven specific areas, including enhancing research to be a driver of innovation, setting up an agenda to expand the AI infrastructure, building the AI infrastructure, promoting social dialogue with stakeholders to responsibly integrate AI into Germany’s institutional systems, and ultimately drafting and enforcing a more effective, innovative and agile AI regulation, that fosters innovation.

Hungary

In Hungary, Government Decree 1573/2020 sets forth the national strategy on AI. This strategy has been developed by the Artificial Intelligence Coalition, which comprises more than 70 Hungarian and International companies, universities, and research groups. The Coalition’s main goal is to place Hungary as a leading power in AI, and to strengthen national businesses’ competitiveness with it. The strategy focuses on transformative programs in the manufacturing, healthcare, energy and logistics sectors. It aims at enhancing Hungary’s technologies and infrastructures, while also fostering the public comprehension of AI and its applications. The Hungarian government, through the venture capital program “Széchenyi” made funds available to support the development of AI. The funded projects include the “AI Innovation and Competence Centre and Data Asser Management”, which promotes the application of AI systems to Hungarian small and medium enterprises, the development of AI-based technology for various purposes and the establishment of the national “Laboratory for Artificial Intelligence”.

Italy

In Italy, the GDPR and copyright legislation are the main tools used to regulate the application of AI and its functioning. In particular, these are significantly important as far as the training process of AI models is concerned, since training sets may incorporate and process personal data or copyrighted work, triggering legal obligations, prohibitions and sanctions. Additionally, Italy plans to further regulate the topic, complementing the upcoming AI Act. Indeed, the Italian Government recently proposed to the Italian Senate the introduction of a new law (Disegno di legge 1146/2024 - “DDL”), which is currently being discussed by the relevant committees. The announced goal is to strike the right balance between the protection of human rights on the one hand, and the development of innovative and beneficial tools on the other. In other words, the DDL dictates general principles to follow, in order to prevent AIs from negatively impacting on human autonomy, excluding humans from the processes in which AI is employed, and depriving them of their individual decision power. Thus, the DDL safeguards freedom of information and communication, fairness in the use of data, and transparency in the training of models. The DDL also proposes to introduce more sector-specific provisions, authorizing, for example, the use of AI systems in public administration and in intellectual professions only in secondary activities in support of the core one. The Italian Government has allocated 1 billion euro to the acquisition of shares in Italian innovative businesses, including those that develop AI systems. It also plans to facilitate partnerships between the public and the private sector, for the development and the employment of fair and efficient AI systems in the public administration.

North Macedonia

In North Macedonia the main regulation that deals with AI is the national Data Protection Law, which is harmonized with the GDPR, while no other specific proposals targeting AI are planned. In 2023, the Government launched “ADA”, an AI-powered digital assistant, which provides information to citizens and businesses. Moreover, the Governmental “Fund for Innovation and Technology Development” has invested approximately 138 million euro since 2013, to support start-ups and innovative projects in North Macedonia.

Portugal

Portugal plans to align its legislation on AI with the AI Act. Portugal is one of the first countries to have developed a national strategy. In fact, in 2019 it adopted the “National Strategy on AI”, which fosters innovation in healthcare, agriculture and education. In line with the AI Act, the National Strategy too is based on a risk-based approach that aims at developing ethical and human-rights-oriented AI. Importantly, Portugal’s strategy includes the establishment of sandboxes, which are secure environments where AI systems can be tested, under the supervision of public authorities, before getting released to the public, mitigating risks related to privacy and security.

Romania

The Romanian Senate has started public discussions on 19 March 2024 for a new legislative proposal on AI. As of today, the proposal would prohibit the automatization of the flow of human resources, as well as the use of biometric data of natural persons (except for crime prevention and detection purposes). It is worth highlighting that the Romanian approach might conflict with the AI Act, therefore it might me heavily modified to align with it. In February 2024, the Ministry of Investments and European Projects published Order No. 464/2024 for the approval of a state aids scheme, and a scheme of contributions to support entrepreneurs in the development of advanced digital technologies. These schemes allocate 3 million euro in grants to foster the development of advanced technologies, including AI.

Serbia

As of today, Serbia set forth voluntary guidelines and recommendations in the AI sector, such as the “Strategy of Development of Artificial Intelligence in the Republic of Serbia for 2020-2025”, and the “Conclusion on Adoption of Ethical Guidelines for Development, Application and Use of Reliable and Responsible Artificial Intelligence”. Besides providing guidance for the development of safer AI models, these acts also envisage the enactment of new regulations and the amendment of existing laws to better face the risks posed by AI (such as a new Data Protection Law). Serbia is currently developing its 2024-2030 national strategy on AI, which is expected to be adopted by the end of the year. As Serbia is also preparing to become an EU Member, it is also likely that it will transpose and issue a law on AI that parallels the AI Act. The Serbian Government also financed AI-related projects with 1 billion euro per year, in the 2020-2025 period. The Fund for Science currently funds 12 projects under the “Program for Development of Projects in the AI Field”.

SwedenThe Swedish Government is currently collecting information to draft a national law on AI, that is in line with the AI Act. But Sweden’s most important tool to get ahead in the AI race comes in the form of investments in the AI field, and the focus on the training of human capital. In fact, Microsoft announced a 3 billion euro investment in AI-related projects, and the training of 250,000 people, highlighting the attractiveness of Sweden in the industry. In 2023 the Government established a commission on AI to enhance the competitiveness of businesses in the sector, which concluded that the public administration would benefit approximately of 14 billion euro per year thanks to the integration of AI in its processes. Sweden also established “AI Sweden”, a government-funded national center for the application of AI, in partnership with entities in both the public and the private sector, as well as universities.

Switzerland

As of today, Switzerland chose a sector-specific approach to AI regulation, including the federal data protection law of 2020 which disciplines automated decisions, granting enhanced transparency and other individual rights that are similar to those granted under the GDPR. However, the legislation might soon be integrated by a new tool, as the Federal Council started an analysis to develop general legislation on AI, by 2025 (which is set to consider the norms of the EU and of the European Council). The goal is to provide Switzerland with a clear and AI-compatible normative landscape. Additionally, the Swiss Federation supports digitalization and technological development projects, including AI programs, in partnership with universities and research institutions, such as the “ETH” in Zurich, or the “EPFL” in Lausanne. Also, “Digital Administration Switzerland” and “AI Switzerland” promote innovation and training in AI-related fields.

Spain

Spain’s main tool to regulate AI is the “National Strategy for Artificial Intelligence 2024”, in line with the AI Act. The Spanish strategy mainly focuses on cybersecurity, which is an essential element for the digital transformation of the economy. In fact, Spanish institutions are currently discussing a Cybersecurity Law, which is set to enter into force in late 2024, to grant a better protection of digital systems. Additionally, Spain established the “Spanish Agency for Artificial Intelligence Supervision” (“AESIA”), with the purpose of granting ethical and transparent practices in the use of AI. The National Strategy allocates 1,5 billion euro – from the National Recovery and Sustainability Plan – and 600 million euro from the State budget, which have already been mobilized. The plan includes investments in supercomputing, the development of language models in Spanish and other co-official languages, the promotion of talents in the AI field, and the expansion of AI in the public and private sectors, with special attention for small and medium enterprises.

United Kingdom

The United Kingdom heavily relies on the GDPR to regulate AI (which also influences automated decisions). The “Artificial Intelligence Regulation Bill” was a tentative to provide the country with horizontal regulation on AI, although its progress was stopped due to the UK’s early elections. However, the Government has already launched several initiatives in support for AI. The “AI Sector Deal” of 2018 invested 1 billion pounds for Research and Development, training and ethical research on AI. Additionally, the “AI and Data Grand Challenge” provides businesses with 2,6 billion pounds from the public sector, and 3 billion from the private one. The “United Kingdom Research and Innovation” program further invested 300 million pounds for proper computing, 250million pounds for the development of AI in healthcare and zero-emission economy, and 100 million pounds in academic centers for technological talents.

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

EUROPEAN COMMISSION (EC)

Lithuania: the European Commission approves 122 million euro State aid measure to support AB Achema decarbonise its fertiliser production (12.07.2024) – The European Commission has approved, under EU State aid rules, a 122 million euro Lithuanian measure to support AB Achema in decarbonising its fertiliser production processes. The measure will contribute to the achievement of the EU Hydrogen Strategy, the European Green Deal and the Green Deal Industrial Plan targets, while helping to end dependence on Russian fossil fuels in line with the REPowerEU Plan. The aid will take form of a direct grant to support the installation a 171 MW alkaline electrolyser at AB Achema's production site in the Kaunas region of Lithuania. Currently, AB Achema uses natural gas-based hydrogen to produce ammonia, a key input in the production of fertilisers. The electrolyser will produce renewable and low-carbon hydrogen that will be used to produce ammonia. The hydrogen produced by the electrolyser will replace 30% of the hydrogen currently produced from natural gas, thereby reducing carbon dioxide (‘CO2') emissions and demand for natural gas. The electrolyser is envisaged to start operating in 2026. Once completed, the project is expected to avoid the release of at least 5.8 million tonnes of CO2 over the 19 years of expected operation of the electrolyser. AB Achema committed to actively share the experience and technical know-how gained as a result of the project through publications and conferences to contribute to the deployment of clean technologies in the fertilisers industry.

Link

The European Commission accepts commitments by Apple opening access to 'tap and go' technology on iPhones (11.07.2024) – The European Commission has made commitments offered by Apple legally binding under EU antitrust rules. The commitments address the Commission's competition concerns relating to Apple's refusal to grant rivals access to a standard technology used for contactless payments with iPhones in stores. Apple Pay is Apple's own mobile wallet used to allow iPhone users to pay with their devices in stores and online. Apple's iPhones run exclusively on Apple's operating system ‘iOS'. Apple controls every aspect of its ecosystem, including access conditions for mobile wallet developers. The Commission preliminarily found that Apple has significant market power in the market for smart mobile devices and a dominant position on the in-store mobile wallet market on iOS. Apple Pay is the only mobile wallet that may access the NFC hardware and software (‘NFC input') on iOS to make payments in stores, as Apple does not make it available to third-party mobile wallet developers. In its investigation, the Commission preliminarily concluded that Apple abused its dominant position by refusing to supply the NFC input on iOS to competing mobile wallet developers, while reserving such access only to Apple Pay. The Commission's preliminary view is that Apple's refusal excluded Apple Pay's rivals from the market and led to less innovation and choice for iPhone mobile wallets users. Such behaviour may breach Article 102 of the Treaty on the Functioning of the European Union (‘TFEU'), which prohibits the abuse of a dominant position.

Link

Slovakia: the European Commission opens in-depth State aid investigation into support to NAJPI for setting up a glass sand extraction sit (09.07.2024) – The European Commission has opened an in-depth investigation to assess whether public support granted to the Slovak company NAJPI a.s. (‘NAJPI') for setting up a glass sand extraction site is in line with EU State aid rules. The Commission will assess in particular whether, at the time of granting of aid, NAJPI could be qualified as an SME. The Commission will also assess whether, at the time of granting of aid, the conditions laid down in the GBER, in particular, concerning economic difficulties were fulfilled, as in such circumstances NAJPI would not qualify for regional aid. Should the Commission conclude that the Slovak support could not benefit from an exemption based on the GBER, it would assess whether the conditions of the 2007-2013 RAG were met.

Link

Germany: the European Commission opens in-depth State aid investigation into 6 billion euro support measure to recapitalise Lufthansa in the context of coronavirus pandemic (08.07.2024) – The European Commission has opened an in-depth investigation to assess whether a German recapitalisation measure of 6 billion euro in favour of Deutsche Lufthansa AG (“Lufthansa”) is in line with EU State aid rules. The German aid measure consisted of an equity component of 306 million euro and two hybrid instrument components, namely, Silent Participation I of 4.7 billion euro with features of a non-convertible equity instrument, and Silent Participation II 1 billion euro with features of a convertible debt instrument. The Commission found the measure to be compatible with EU State aid rules, but the General Court annulled the Commission's decision. The Commission will now carry out a more in-depth investigation to assess further the recapitalisation measure. In that regard, the Commission will focus on the following points: (i)the eligibility of Lufthansa for the aid; (ii) the need for a so-called “step-up” or similar mechanism to incentivise the exit of the State from the capital;(iii) the price of the shares at the time of a potential conversion of Silent Participation II into equity; (iv) the existence of Significant Market Power at airports other than Frankfurt and Munich, at least at Dusseldorf and Vienna airports;(v) certain aspects of the structural commitments imposed on Lufthansa.

Link

Italy: the European Commission leers Italian public support for Caremar ferry service (08.07.2024) – The European Commission has concluded that the public service compensation granted from 01.01.2009 to 31-07.2012 to Caremar SpA (‘Caremar') for the operation of ferry services in Italy is in line with EU State aid rules. The same applies to the compensation granted to Caremar under the public service contract concluded for the period between 16.07.2015 and 15.07.2024, after Caremar was acquired by the temporary association of companies SNAV/Rifim Srl (‘SNAV/Rifim'). Following a series of complaints, the Commission launched in October 2011 an in-depth investigation into several public support measures in favour of companies of the former Tirrenia Group and their respective acquirers. In November 2012, the Commission extended the scope of this investigation to include additional measures.

Link

France: the European Commission approves 10.82 billion euro State aid scheme to support offshore wind energy to foster the transition to a net-zero economy (03.07.2024) – The European Commission has approved a 10.82 billion euro French scheme to support the deployment of offshore wind energy, which will help foster the transition towards a net-zero economy. In particular, the measure will support the construction and operation of two bottom-fixed offshore wind farms: one in the South Atlantic zone and another in the Centre Manche 2 zone in Normandy. The South Atlantic wind farm is expected to have a capacity of 1000 to 1200 MW and to generate at least 3,9 TWh of renewable electricity per year. The Normandy wind farm is expected to have a capacity of 1400 to 1600 MW and to generate at least 6,1 TWh of renewable electricity per year. The aid will be granted on the basis of transparent and non-discriminatory bidding processes, which will be organised to select one beneficiary per offshore zone. Under this scheme, the aid will take the form of a monthly variable premium under a two-way contract for difference (‘CfD'), which will be calculated by comparing a reference price, determined in the tender offer of the beneficiary (‘pay as bid'), to the market price for electricity.

Link

The European Commission clears proposed acquisition of stake in ITA Airways by Lufthansa, subject to conditions (03.07.2024) – The European Commission has approved, under the EU Merger Regulation, the proposed acquisition of joint control of ITA Airways (‘ITA') by Deutsche Lufthansa AG (‘Lufthansa') and the Italian Ministry of Economy and Finance (‘MEF'). The approval is conditional upon full compliance with the remedies offered by Lufthansa and the MEF. Pursuant to the commitments proposed, Lufthansa and the MEF can only implement the transaction following the Commission's approval of suitable remedy takers for each of the short-haul, long-haul and Milan Linate commitments. The Commission will assess the suitability of remedy takers in the context of a separate buyer approval procedure. These commitments fully address the competition concerns identified by the Commission. Therefore, the Commission concluded that the transaction, as modified by the commitments, would no longer raise competition concerns. The decision is conditional upon full compliance with the commitments. Under supervision of the Commission, an independent trustee will monitor their implementation.

Link

Sweden: the European Commission approves 3 billion euro State aid scheme to support the roll-out of biogenic carbon dioxide capture and storage (02.07.2024) – The European Commission has approved, under EU State aid rules, a 3 billion euro Swedish scheme to support carbon capture and storage (‘CCS') aimed at reducing carbon dioxide (‘CO2') released during the combustion or processing of biomass (‘biogenic CO2'). The measure will contribute to the achievement of Sweden's climate targets and the EU's strategic objectives under the European Green Deal, in particular the 2050 climate neutrality goal. Under the scheme, the aid will be awarded through a competitive bidding process, with the first auction expected in 2024. Auctions will be open to companies that (i) carry out an activity in Sweden, emitting biogenic CO2, and (ii) implement projects with a capacity to capture and store at least 50,000 tonnes of biogenic CO2 per year. Under 15-year long contracts, beneficiaries will receive a grant per tonne of biogenic CO2 that is permanently stored. The aid received will be adjusted taking into account possible revenues that might stem from the projects (e.g., thanks to voluntary carbon removal certificates), as well as other public support received for the same project. The scheme will run until 31.12.2028.

Link

Bulgaria: the European Commission approves 25.51 million euro restructuring State aid for Bulgarian Posts (02.07.2024) – The European Commission has approved, under EU State aid rules, Bulgaria's plans to grant postal operator Bulgarian Posts restructuring aid for up to 25.51 million euro. The measure will enable the company to restore its long-term viability while minimising competition distortions. The restructuring plan sets out a package of measures for streamlining Bulgarian Post's operations, optimising its network and reducing costs. In parallel, Bulgarian Posts will develop or provide services such as telemedicine or administration through its ubiquitous network on behalf of other public entities, bringing such services closer to citizens in remote areas not well served.

Link

The European Commission approves 1.3 billion euro restructuring State aid for airline SAS (28.06.2024) – The European Commission has approved, under EU State aid rules, Denmark and Sweden's plans to grant Scandinavian Airlines System AB (‘SAS') restructuring aid for up to 1.3 billion euro. The measure will enable the company to restore its long-term viability while minimising competition distortions. The plan sets out a package of measures for streamlining SAS' fleet, optimising its network, reducing costs, financial burdens and increasing revenues. The plan, which is supported with new aid from Sweden and Denmark through various instruments and different amounts, is necessary to make SAS viable again, following the slower than expected recovery of the air travel demand since the outbreak of the coronavirus pandemic and the adverse effects of Russia's invasion of Ukraine.

Link

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

EUROPEAN COMMISSION (EC)

The European Commission launches consultation on Trade in e-waste & amendments to the Basel Convention annexes (03.07.2024) – The fifteenth Conference of the Parties to the Basel Convention amended the Basel Convention's Annexes II, III and VIII to bring all imports and exports of electrical and electronic waste under the scope of that Convention. The amendments will enter into force from 01.01.2025 and will apply to all Parties to the Convention, including the EU and its Member States. This initiative incorporates these changes into EU law (EU Waste Shipment Regulation), which is due for publication in April 2024.

Link

The European Commission launches consultation on Tariff quotas – amended rules on reference quantity requirement (03.07.2024) – Regulation (EU) 2020/760 lays down rules for EU importers to apply for import licences. Importers can apply for licenses for up to the average annual quantity of products with the same origin released for free circulation in the EU in the past 2 years. This initiative adjusts the rules on reference quantity to avoid any risk of market distortions posed by recent market developments in some sensitive sectors.

Link

The European Commission launches EU environmental law – 2025 implementation review (05.07.2024) – The environmental implementation review is a regular cycle of analysis, dialogue and collaboration to improve the implementation of EU environmental policy and law in EU countries. This initiative identifies the main implementation gaps in EU countries and addresses their root causes, proposes solutions, provides technical assistance and facilitates the exchange of good practices, raises awareness and makes it easier for everyone involved to find information on implementing these policies.

Link

The European Commission launches consultation on Cooperation on direct taxation (07.07.2024) – Directive 2011/16/EU (directive on administrative cooperation - DAC) establishes a system for secure administrative cooperation between the national tax authorities of EU countries and lays down rules and procedures for exchanging information. This evaluation will assess the effectiveness, efficiency and continued relevance of the DAC and its amendments (DAC2 to DAC6), as well as its coherence with other policy initiatives & priorities and the EU added value.

Link

The European Commission launches consultation on energy labelling requirements for computers (18.07.2024) – The Regulation aims to help consumers choose the most energy-efficient computers by using a scale from A (most efficient) to G (least efficient). The energy label will also provide other useful information on durability and reparability. The consultation covers both the ecodesign and energy labelling initiatives. This consultation covers both the Eco-design and Energy labelling interlinked initiatives. You just need to provide feedback once.

Link

The European Commission launches consultation on Trade in seal products – fitness check of EU rules (07.08.2024) – Seals are hunted in parts of the world for commercial, subsistence and cultural reasons. In 1983, following people's concerns about animal welfare, the EU banned the import of certain seal pup skins. In 2009, a general ban on placing seal products on the EU market was introduced, with two exceptions. This initiative will assess if the rules in place remain fit for purpose, focusing on their socio-economic impact and their impact on seal populations.

Link

The European Commission launches a call for evidence on Energy efficiency – Ecodesign requirements for air heating and cooling products (review) (31.08.2024)- In 2016, an Ecodesign measure on air heating products, cooling products, high-temperature process chillers and fan coil units set minimum energy-efficiency requirements, taking effect in 2018 and in 2021. The EU is now reviewing the Ecodesign measure considering technological progress and circular-economy objectives. 

Link

The European Commission launches consultation on Commercial vehicles – weights and dimensions (evaluation) (05.09.2024)- Under current EU rules, commercial vehicles in the EU carrying goods or passengers by road must meet the allowable weights and dimensions. This initiative will evaluate if the rules: ensure the smooth functioning of the single market improve the environmental performance of these vehicles while safeguarding road safety. Based on these findings, the Commission will assess options to address any identified regulatory and market failures. 

Link

The European Commission launches consultation on EU Maritime, Fisheries and Aquaculture Fund (“EMFAF”) 2021-2027 – midterm evaluation (13.09.2024) - This midterm evaluation assesses the state of implementation of the EMFAF for the 2021-2027 programming period. It examines the Fund’s effectiveness and efficiency, coherence with other policies relevance EU added value.

Link

The European Commission launches consultation on Taking car rentals into other EU countries (23.09.2024)- National rules for using car rentals in other countries make car hire expensive and inefficient for the EU population. Rental companies also suffer, and inefficient rules for returning cars may lead to unnecessary greenhouse gas emissions. This initiative aims to make it easier to take private car rentals into other EU countries by setting minimum EU rules on registration, cross-border use and returning cars.

Link