On 4 May 2022, the Council of the EU (the “Council”) formally adopted its position on the proposal of the European Commission (the “Commission”) for a Regulation on foreign subsidies distorting the internal market (the “Foreign Subsidies Regulation”) (see our alert on the proposal). On the same day, the European Parliament (the “Parliament”) also adopted its position on the Foreign Subsidies Regulation (see our blog post). The Council’s adoption confirms the Commission’s initial proposal of the regulation while seeking to limit the Commission’s power to investigate foreign subsidies.

The three most important things for you to know about the recent amendments to the Foreign Subsidies Regulation:

  • The thresholds above which companies are obliged to inform the Commission about their foreign subsidies have been increased, reducing the scope of the new rules to a narrower set of acquisitions, mergers and public procurements. In addition, foreign subsidies of less than EUR 5 million would not be subject to notification and foreign subsidies of less than EUR 200,000 would escape any scrutiny.  
  • The time period in which the Commission has to investigate foreign subsidies in large public procurements has been reduced. Furthermore, the “retroactive” application of the Foreign Subsidy Regulation is limited to foreign subsidies granted in the five years prior to the application of the regulation.
  • The application of some concepts (e.g., the power to request prior notification) will be subject to further guidance by the Commission.
Continue Reading The Council of the EU endorses the European Commission’s proposal on the Foreign Subsidies Regulation

On 1 March 2022, the European Commission (“Commission”) published drafts of the revised Research & Development Block Exemption Regulation (“R&D BER”) and Specialization Block Exemption Regulation (“Specialisation BER”, together the “Horizontal Block Exemption Regulations” or “HBERs”) as well as the accompanying Horizontal Guidelines for stakeholder comments.  The current HBERs are due to expire on 31 December 2022.

The HBERs set out how competitors can work together on projects and enter into horizontal agreements without breaching collusion-related prohibitions.  During the Commission’s evaluation of the current HBER rules and horizontal guidelines, the Commission identified a number of areas for improvement, including the need to update the rules in line with the Commission’s policies on digitalization and sustainability (see our previous blog post here).

Three things for you to know about the recent amendments to the HBERs:

  1. There is a strong focus on sustainability, and how sustainability agreements may comply with EU competition law, which provides greater scope for companies to enter into sustainability agreements (which is detailed in this blog post).
  2. Data sharing and information exchange is at the forefront of the HBER update, with additional guidance on identifying and sharing commercially sensitive information and the use of algorithms.
  3. The competition rules for research and development agreements and specialisation agreements have been explained and clarified, including new definitions of key competition terms (e.g., active and passive sales, unilateral specialisation agreements).

Continue Reading Sustainability in the European Commission’s revised horizontal block exemption regulations and guidelines

On 28 April 2022, the Subsidy Control Bill (the “Bill”) received Royal Assent, becoming the Subsidy Control Act 2022 (the “Act”).  The Act lays the basic framework for the new UK-wide subsidy control regime, which is now expected to come into force in Autumn 2022.  Although the Act primarily addresses UK public authorities and their legal obligations relating to the awarding of domestic subsidies, the new regime will be of particular interest to companies wishing to benefit from the more flexible post-Brexit subsidy regime moving forward.

Continue Reading UK Subsidy Control Bill granted Royal Assent

On 4 May 2022,  the European Parliament (the “Parliament”) adopted its position on the proposal of the European Commission (the “Commission”) for a Regulation on foreign subsidies distorting the internal market (the “Foreign Subsidies Regulation”) (see our alert on the proposal). It confirms the Commission’s powers to investigate and remedy the potential negative effects of foreign subsidies. It further approves a number of amendments adopted by the committee on international trade “to make the tool more effective and improve legal certainty”, according to the Committee’s press release.

Continue Reading The European Parliament endorses the EU Commission’s proposal on the Foreign Subsidies Regulation

Russia’s continued invasion of Ukraine is broadly impacting foreign direct investment (“FDI”) screening. A range of governments have announced they will apply close scrutiny to investments from Russia and its allied countries in general, and not only to investors that are subject to sanctions or other restrictive measures. The European Commission (“Commission”) has published guidance on the screening of investments from Russia and Belarus.

The German government has already intervened, appointing a fiduciary for an operator of critical gas infrastructure. Canada issued a policy statement targeting Russian investors and Italy permanently broadened its FDI regime. Our blog provides a summary of these developments below.

Continue Reading FDI regulators show their teeth – Close scrutiny and firm intervention in response to Russia’s war against Ukraine

On 24 March 2022, the European Parliament and the Council reached an agreement on the Digital Markets Act (“DMA”), a pioneering initiative to regulate digital markets and endorse the European digital strategy. The DMA would include a set of obligations for “designated gatekeepers”, namely companies whose digital services would be determined as an important gateway for businesses to reach consumers.

The DMA has been negotiated for more than a year, with discussions centering around: (i) the criteria for determining “designed gatekeepers”, (ii) content of specific obligations, and (iii) enforcement mechanisms. The final agreed text has not yet been released, but we share our understanding of the developments in these three areas.

Continue Reading European Parliament and Council strike the deal on the Digital Markets Act

On 23 March 2022, the European Commission (the “Commission”) adopted a Temporary Crisis Framework for State Aid measures to support the economy following the aggression against Ukraine by Russia (the “Framework”). In a similar fashion to the temporary framework that the Commission has adopted to address the COVID-19 outbreak (the “COVID-19 Temporary Framework”), and earlier, to deal with the 2008 financial crisis (the “Banking Framework”), the Framework is based on Article 107(3)(b) of the Treaty on the Functioning of the European Union (the “TFEU”), which allows State aid to be granted in order to remedy a serious disturbance in the economy, in this case caused by the Russian aggression against Ukraine and/or by the sanctions imposed or by the retaliatory counter measures taken in response. It sets out the conditions under which the Commission will assess such State aid. Measures that meet all the conditions set out in the Framework must be notified to the Commission and will be considered compatible with the Internal Market if all conditions are indeed met.

Continue Reading The Commission’s Temporary Crisis Framework for State Aid measures to support the economy following the aggression against Ukraine by Russia

In his State of the Union address last week, President Biden declared that he wants to: “strengthen privacy protections, ban targeted advertising to children, and demand tech companies stop collecting personal data on our children.”  This statement comes just a couple of weeks after Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN) introduced the Kids Online Safety Act.  That legislation, together with the Senate Judiciary Committee’s consideration of the EARN IT Act, a bill aimed at protecting children from online sexual exploitation, gives Congress several options to focus on the internet and child safety—now with the President’s blessing.

The timing of the President’s declaration is important because the number of days available for Congress to take legislative action is shortening as the midterm elections approach.  Though Congress has already held several hearings about online platforms, particularly in the Judiciary Subcommittees with jurisdiction over antitrust, now remains an important time for stakeholders to engage in the discussion.  After the President’s address, the U.S. Senate is almost certainly laying the groundwork for what it would call a larger “tech accountability” package.

Continue Reading Is the U.S. Congress Preparing a “Tech Accountability” Package?

When the UK left the EU on 31 December 2020, the Competition and Markets Authority (“CMA”) gained new powers, functions and responsibilities previously exclusively reserved to the European Commission (the “Commission”).

This blog explores how the CMA has tackled its increased workload in the first year post-Brexit, under the shadow of the global pandemic, and the extent to which the CMA’s practice has diverged from EU law.

Continue Reading Trends, developments and divergence from EU law? The CMA’s first year as a global competition authority

On Episode 18 of Covington’s Inside Privacy Audiocast, Dan Cooper, Moritz Hüsch, Kristof van Quathem, and Petros Vinis discuss GDPR enforcement, and the evolution of regulatory fines since the GDPR was enacted in 2018.


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