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Johan Ysewyn

Johan Ysewyn is widely respected as a highly skilled European competition lawyer, advising on complex competition issues, including on merger control, anti-cartel enforcement, monopolisation cases and other conduct investigations. He acts as Co-Head of the firm's Global Competition group and as Managing Partner of the Brussels office.

Clients turn to Johan when they need cutting-edge competition and regulatory advice. He has been advising some of the world's leading companies for over 30 years on their most complex competition issues. Johan is "an exceptional lawyer who is solution-oriented, has a remarkable ability to rapidly understand our business and has excellent reactivity." (Chambers Global) Johan "attracts considerable praise for his reliable practice, as well as his great energy and insight into cartel proceedings." (Who's Who Legal)

Johan represents clients from around the world in dealings with competition authorities as well as in court litigation. He has in-depth knowledge of regulatory procedures and best practices as well as longstanding relationships with key regulators, in particular at the European Commission. He has also an active advisory practice covering a range of areas of interest to corporates, including the interplay between ESG goals and competition law, the impact of competition law enforcement on digital markets and broad strategic compliance issues.

Johan’s experience spans many industry sectors, with recent experience in telecoms and information technology, media, healthcare, consumer goods, retail, energy and transport. He has advised on several of the most major merger investigations in recent years. In addition, he has represented clients in many conduct investigations.

Johan’s practice also has a strong focus on global and European cartel investigations. He has acted for the immunity applicants in the bitumen and marine hose cartels, and acted for defendants in alleged cartels in financial services, consumer goods, pharmaceuticals, chemicals, consumer electronics and price benchmarking in the oil sector. He has acted for the European Payments Council in the first European Commission investigation into standardisation agreements in the e-payments sector. Johan has written and lectured extensively on international cartel and leniency-related issues. He co-authors the loose-leaf European Cartel Digest and lectures on cartel law and economics at the Brussels School of Competition.

Johan is also one of the leading experts on EU State aid issues, working both for beneficiaries and governments. He has advised a number of leading banks and governments, as well as represented major European airlines. From the cases that can be publicly disclosed, he has been involved in the Fortis, KBC, Dexia, Arco, Citadele, airBaltic and Riga Airport State aid cases.

The EU Foreign Subsidies Regulation (“FSR”), which creates a new clearance mechanism for non-EU subsidies granted to companies engaging in certain activities in the EU, took effect on 12 July 2023, with notification obligations starting on 12 October 2023. On 22 February 2024 the European Commission’s (“Commission”) Directorate General for Competition (“DG COMP”) published a Policy Brief discussing the 100 days since the start of the notification obligation for concentrations.

This post provides an update to our previous blog post on FSR enforcement expectations for 2024, taking account of the Policy Brief, the reported enforcement activity of the Commission’s Directorate General for Internal Market, Industry, Entrepreneurship and SMEs (“DG GROW”) for public procurement procedures, and the launch of the first in-depth investigation by DG GROW into a public procurement procedure in Bulgaria.

Key Takeaways

  • The Commission does not publish the decisions it adopts after a preliminary review and will not issue guidelines on key concepts underpinning the FSR before 2026. In the meantime it has sought to provide some additional guidance to companies through informal documents such as Q&A pages, news articles, and Policy Briefs. However, it has yet to provide guidance on how it assesses the distortive potential of foreign subsidies. Companies will therefore have to anticipate how such foreign subsidies will be assessed under the FSR, with a view to developing their own narratives to persuade the Commission that any foreign subsidies they may have received are unproblematic.
  • As of 20 January 2024, DG COMP had received 53 (pre-)notifications, higher than the 30 notifications it expected annually in its 2021 FSR proposal. To review these files and launch investigations on its own, DG COMP has been restructured with the creation of a new directorate (Directorate K) from 1 March.
  • As on 19 January, DG GROW, which is in charge of reviewing public procurement procedures, had received over 100 notifications / declarations. DG GROW also opened its first in-depth investigation into foreign subsidies received by CRRC, a Chinese rolling stock manufacturer.

Continue Reading The EU Foreign Subsidies Regulation – Key takeaways from the first 100 days

2023 saw a number of developments concerning the interplay between sustainability considerations and competition policy. This blog post highlights the five key developments that businesses need to know when collaborating to achieve sustainable aims.

Key takeaways

  1. Authorities in the EU and UK resisted calls for introducing a sustainability safe harbour and adopted guidelines based on
Continue Reading Was 2023 a green antitrust year? Five sustainability related competition law developments you need to know

The EU Foreign Subsidies Regulation (FSR) adopted in December 2022 creates a new instrument to prevent foreign subsidies from distorting the European Union (EU) internal market. It aims to fill a perceived regulatory gap left by EU State aid rules applying to subsidies granted by EU countries but not by foreign states. It started to

Continue Reading What does the new EU Foreign Subsidies Regulation (FSR) mean for companies doing business in the EU?

The Foreign Subsidies Regulation (“FSR”) enters into force today, 12 July 2023. It creates a new instrument designed to prevent foreign subsidies from distorting the EU internal market (see our blog). The objective is to level the playing field within EU markets between companies subject to scrutiny under the EU State aid rules and companies receiving subsidies from non-EU Member States. Two days ago, on 10 July 2023, the European Commission (the “Commission”) adopted the Implementing Regulation (“IR”), which sets out the procedure and enacts the notifications forms. Continue Reading The EU Foreign Subsidies Regulation starts to apply – what you need to know about the notification obligations

Various national competition authorities (“NCAs”) are continuing to consider sustainability arguments in competition cases. However, NCAs are increasingly diverging in their approach as to whether, and to what extent, they are willing to allow sustainability considerations in the competition law framework. This blogpost highlights a few recent developments in jurisdictions on both sides of the Atlantic.Continue Reading Sustainability Agreements: Potential Divergence between Authorities

The European Competition Commissioner, Margrethe Vestager, announced on 20 March 2023 that new State aid investigations into “aggressive tax planning” practices of multinationals can be expected. This follows an in-depth inquiry into tax ruling practices in European Union (“EU”) Member States for the period 2014-2018.

While the European Courts have annulled several European Commission (“Commission”) decisions that ordered companies to repay to the State advantages gained from tax rulings, they have decided that State aid law also applies to tax measures, even if direct taxation is a prerogative of Member States. However, as this article sets out, the European Courts have limited the Commission’s review.

In particular, by its judgment of 8 November 2022 in the Fiat Chrysler case (C-885/19 P), the Court of Justice of the European Union annulled a Commission decision ordering Fiat Chrysler to refund EUR 30 million of tax advantages to Luxembourg. It clarifies when a tax ruling can be considered State aid.

These are the key takeaways of this judgment:

  • Although not harmonized at the EU level, direct taxation must comply with State aid rules. Therefore, the Commission may review tax rulings under State aid law and verify, for instance, that the tax system is applied consistently with the objectives pursued.
  • As long as direct taxation is not harmonized at the EU level, it is up to Member States to determine the tax regime applicable to companies. Therefore, the Commission should consider that the normal tax system, against which discriminations favoring certain companies may be State aid, is determined by national law.
  • When examining whether a tax measure favors certain companies over others, the Commission cannot substitute the normal national applicable law with its own standard of normality.

This judgement will likely impact pending investigations into the tax rulings issued to other companies and in ongoing proceedings. It will also set the approach the Commission may take in potential new investigations.

In short, this judgment says that if a tax ruling is issued in compliance with the national legal framework and not manifestly inconsistent with the objectives pursued by the national tax regime, it is unlikely to be State aid.Continue Reading Will the EU Commission start new State aid investigations into multinationals’ tax rulings after of the Court of Justice’s judgment in the Fiat Chrysler case?

As part of “A Green Deal Industrial Plan for the Net Zero Age” to respond to the US Inflation Reduction Act (IRA) (see our alert), the European Commission (the “Commission”) adopted on 9 March 2023 its Temporary Crisis and Transition Framework for State Aid measures to support the economy following the aggression against Ukraine by Russia (the “TCTF”). The text amends the Temporary Crisis Framework last amended on 28 October 2022 (see our blog). 

These are the three most important things you need to know about the TCTF:

  • To avoid that an investment would be located outside the European Economic Area (EEA), EU countries may support investments in the manufacturing of relevant equipment for the transition towards a net-zero economy, such as batteries, solar panels, wind turbines, heat pumps, carbon capture usage and storage (CCUS), as well as their key components and critical raw materials necessary for their production. They may even grant aid matching foreign subsidies to support those investments, provided that they are located in the poorer areas of the EU.
  • EU countries’ possibilities to grant aid for accelerating the rollout of renewable energy are extended to any renewable technologies, including hydropower, and no longer require a bidding process to select the aided projects that are considered as less mature.
  • The TCTF is not a subsidy program, and it is up to EU Member States to provide public funding.

Continue Reading The Commission adopts its Temporary Crisis and Transition Framework relaxing State aid rules as a response to the US Inflation Reduction Act

On 12 January 2023, the European Court of Justice (“ECJ”) published its long-awaited judgment in C‑883/19 P HSBC v Commission.

The ECJ confirmed that HSBC had engaged in anti-competitive conduct but partially overturned the General Court’s (“GC”) judgment on procedural grounds. The judgment provides critical guidance on the nature of anticompetitive information exchanges in the financial services sector and sets out important procedural aspects regarding “hybrid” cartel investigations.

The ECJ, having considered the points of appeal, exercised its discretion to issue a final judgment, in place of the GC’s judgment.Continue Reading ECJ clarifies presumption of innocence in hybrid investigations and scope of restrictions by object in information exchanges (HSBC v Commission)

European Union (“EU”) Foreign Subsidies Regulation (“FSR”), a new state aid instrument adopted at the end of 2022, will have a significant impact on transactions in the EU. The FSR impacts any company that is present in or wants the enter the EU, and has received financial support in any form from non-EU governments. 

The

Continue Reading EU Foreign Subsidies Regulation – Key Takeaways

Sustainability governs all policies and sectors of social and economic life. The goal of sustainable development is to meet the needs of today’s generations without compromising the self-sufficiency of future generations. Companies are called upon to innovate as economic conditions indicate a change in the direction of sustainability. Sustainability considerations and green developments have increasingly caught the attention of competition law’s enforcers. Competition authorities such as the European Commission (“Commission”), the Hellenic Competition Commission (“HCC”), the Dutch Competition Authority (“ACM”) and the German Competition Authority (“Bka”) have taken a positive stance towards accepting sustainability initiatives proposed by the private sector. How can companies balance both sustainability and competition law? In this blog post, we analyze recent developments that further explain the sustainability framework that companies have to navigate.Continue Reading Building a sustainability strategy – what companies can (not) do from a competition law perspective