Insights

On February 26, the European Commission presented its Clean Industrial Deal (CID). As a follow-up to the European Green Deal, the CID aims to strengthen the competitiveness of European industry while at the same time accelerating the decarbonization of the economy.

On October 4, 2024, the Court of Justice of the EU (CJEU) ruled in the Diarra case that the transfer rules of the Fédération Internationale Football Association (FIFA) regarding the termination of player contracts without just cause were incompatible with EU internal market and competition laws. Following this landmark ruling, FIFA published temporary changes to its transfer rules on December 23, 2024. This judgment could have a significant impact on the economic model for football in Europe, and on the balance of power both between clubs, and between clubs and their players.

Just over a year ago, the notification obligations under the EU Foreign Subsidies Regulation (FSR) became applicable. Since then, M&A transactions and bids for government contracts above certain thresholds must be notified to the European Commission. Pending the Commission’s review, the transaction cannot be completed, or the contract cannot be awarded. What lessons can be learned from the application of the FSR to date? Has the FSR proved to be an effective tool in leveling the playing field, or has its main effect been to burden companies with red tape, at the risk of discouraging investment in Europe?

On September 3, 2024, the EU Court of Justice overturned the first-instance judgment of the EU General Court, which had held that the European Commission could review transactions that fall below EU and Member States' merger control thresholds through referrals by national competition authorities under Article 22 of the EU Merger Regulation (Case C-611/22 P, Illumina v Commission).

On August 1, 2024, the European Commission published its draft Guidelines on abusive exclusionary conduct by dominant undertakings. Their adoption would mark the first major update in over 15 years of the Commission’s guidance on the application of the prohibition of abuse of dominance laid down in Article 102 of the Treaty on the Functioning of the European Union (TFEU). The Commission’s 2008 Guidance on enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, which received only a limited update in 2023, were once hailed as a welcome move away from a legalistic, form-based approach to an effects-based approached informed by economics. Is the pendulum now swinging back to a more formalistic approach based on presumptions, shifting the burden of proof onto dominant undertakings and heralding an era of stricter enforcement?

On Tuesday, June 11, 2024, Crowell & Moring (Crowell) and King's College London co-hosted their 6thannual Competition Law Conference at TheMerode in Brussels. The event featured a keynote address by David Lawrence, Policy Director at the Antitrust Division of the US Department of Justice (DOJ), and four panels of experts discussing the latest developments in competition law in the EU, UK and US. Key topics included the impact of AI and digital innovation, no-poach and non-compete provisions in the employment context, state aid and the Foreign Subsidies Regulation, and developments in merger enforcement. Distinguished speakers from the EU, UK and US, representing diverse perspectives from regulatory authorities, academia, and industry, shared their insights on these pressing issues.

At the beginning of the year, we brought to your attention that a number of important Belgian and EU legislative changes are likely to have an impact in 2024: there are new laws that have been adopted and proposals that are expected to firm up into law.

More than 25 years after the adoption of the original Market Definition Notice in 1997, the European Commission published a revised Market Definition Notice earlier this year. The definition of relevant markets is often the first step in a competition analysis and forms the basis for calculating undertakings’ market shares and thus their level of market power.

A number of important Belgian and EU legislative changes are likely to have an impact in 2024. On the one hand, there are new laws that have been adopted and will start to bite, and, on the other, there are proposals that are expected to firm up into law.

On July 1, 2023, the European Commission’s revised Guidelines on Horizontal Cooperation Agreements entered into force (see our previous alert for a comprehensive overview of the new rules, including the new horizontal block exemption regulations).

As from October 2023, companies receiving financial contributions from third countries will have to report these to the European Commission when engaging in M&A transactions or bidding for public contracts above certain thresholds. This alert guides you through the new notification obligations under the EU Foreign Subsidies Regulation (FSR): first, we situate these obligations within the overall set-up of the FSR; then we go into the detail of the notification obligations themselves; before concluding with practical advice on how to meet these new obligations.

On June 1, 2023, the European Commission published its new block exemption regulations on research and development agreements (R&D BER) and specialization agreements (Specialization BER), together referred to as the Horizontal Block Exemption Regulations (HBERs). At the same time, it published its final Guidelines for Horizontal Cooperation Agreements (Horizontal Guidelines). The new HBERs will enter into force on July 1, 2023.

On April 20, 2023, the European Commission adopted a number of measures to simplify and streamline its merger review procedure. The changes are intended to speed up the review of transactions that are unlikely to raise competition concerns, thereby allowing the Commission to focus its resources on the most relevant cases. The new rules will enter into force on September 1, 2023.

Last year, the European Union (EU) legislature adopted a far-reaching regulation aimed at tackling the distortive effects on EU markets of financial support provided by non-EU countries to undertakings active in the EU (Foreign Subsidies Regulation or FSR). However, the FSR left many procedural details to be hammered out by the European Commission (EC) in an Implementing Regulation, to be adopted before the FSR itself starts to apply in July 2023. On 6 February 2023, the EC launched a much-anticipated public consultation regarding its draft Implementing Regulation, including two annexes containing notification forms for concentrations and public procurements. Stakeholders have until 6 March 2023 to submit comments.

On October 28, 2022, the European Commission adopted a second amendment to its Temporary Framework for State aid measures to support the economy following Russia’s aggression against Ukraine (“TF”). The TF was set to expire on December 31, 2022. As the war in Ukraine continues to affect companies in the EU, the Commission has extended its application until December 31, 2023. In addition, the second amendment to the TF raises the ceilings for limited amounts of aid and provides for additional flexibility for liquidity support to energy utilities for their trading activities and for companies affected by rising energy costs. It also introduces means to support electricity demand reduction, in line with the recent Regulation (EU) 2022/1854 on an emergency intervention to address high energy prices. The changes reflect the growing concern of the EU institutions about the security of gas and electricity supply in Europe.

As we wrote in an earlier client alert, the European Commission proposed the FSR in May 2021 to close a regulatory gap and level the playing field between undertakings receiving subsidies from EU Member States, which are subject to strict state aid rules, and recipients of third-country subsidies, which so far escaped scrutiny. The proposal followed a public consultation on the European Commission’s June 2020 White Paper on Foreign Subsidies.

The proposed cooperation agreement (“the proposal”), which still has to be approved by the various Belgian parliaments, creates a mechanism to coordinate the exercise of the competences of the federal State and the federated entities in the area of FDI screening. It defines uniform notification thresholds and sets up the ISC as a one-stop-shop for all notifications of investments exceeding those thresholds.

Two recent initiatives have been adopted by EU competition authorities in response to the current crisis in Ukraine. On March 23, 2022, the European Commission adopted a new Temporary Crisis Framework for State aid measures to support the EU economy following Russia’s attack on Ukraine. The goal is to allow EU countries to support companies and sectors that are severely affected by the economic impact of the war or the sanctions imposed against Russia. The Framework will be in place until December 31, 2022. This initiative comes shortly after the European Competition Network issued a Joint Statement, allowing companies to cooperate to address severe disruptions caused by the Ukraine crisis.

On March 7, 2022, a law amending the Belgian Competition Act and transposing the ECN+ Directive (EU Directive 2019/1) was published. Notable changes include the introduction of merger filing fees (EUR 52,350 for the normal procedure and EUR 17,450 for simplified notifications), fines for violating the notification obligation, and new provisions concerning cooperation with other national competition authorities, judicial remedies, dawn raids and leniency. The amendments enter into force on March 17, 2022.