The UK’s NSI Act comes into force on January 4th, 2022. In these brief audio recordings, our team sets out what companies in the energy, life sciences and technology sectors need to know about the UK’s newly expanded investment control regime. For further details contact any member of our London team.

In this episode, our team sets out what companies in the energy sector need to know about the UK’s newly expanded investment control regime including:

  • Areas of the economy, including energy, in which mandatory filings may be required.
  • How a filing requirement can be identified.
  • The factors that may be relevant in considering submission of a voluntary filing and how policy considerations may influence “call-ins”?
  • What to include in your transaction documentation to address risk, and the implications for the due diligence process and transaction timetable.
  • What the potential sanctions can be when mandatory filings are missed.

Audiocast Series Episodes

On 6 October 2021, a preliminary ruling of the Court of Justice of the European Union (“CJEU”) in Sumal confirmed that follow-on damages actions can be brought against subsidiaries of companies found to have infringed EU competition law. This note briefly analyzes the judgment and the implications thereof.

Continue Reading The CJEU’s Sumal Judgment: Parental Liability is “Going Down”

On 20 July 2021, the UK Government’s Department for Digital, Culture, Media & Sport (“DCMS”) and Department for Business, Energy & Industrial Strategy (“BEIS”) published proposals for a new regulatory regime for digital markets alongside accompanying consultation documents (the “Consultation”).  The Consultation seeks views from interested parties and closes on 1 October 2021.

Continue Reading New UK Digital Competition Regulation Regime Consultation Closes on 1 October 2021

What is happening and why?

On 30 June, the UK Government announced its draft Subsidy Control Bill (the “Bill”) which sets out the framework for how the UK will subsidise businesses post-Brexit.  The UK government has hailed the Bill as a major departure from the EU state aid rules.  In practice, the Bill provides a framework for implementing the UK’s international commitments on subsidy control, as set out in the Trade and Cooperation Agreement agreed with the European Union, and in other existing international trade obligations and World Trade Organisation (“WTO”) rules.

The Bill introduces a decentralised subsidy control framework outlining principles with which public authorities must comply when awarding subsidies.  One of the key aims of the Bill is to ensure that the subsidy control regime is not used to encourage a “race to the bottom” between different regions of the UK.

While there are some important differences as compared to the EU state aid regime, the fundamental principles are comparable and any subsidies given under the Northern Ireland Protocol will continue to be governed by EU rules.

Continue Reading The UK’s post-Brexit Subsidy Control regime — what to expect

Introduction

On 23 July 2021, the European Commission (“Commission”) adopted an extension of the scope of the General Block Exemption Regulation (“GBER”). The revised rules concern:

  • Aid for projects funded via certain EU centrally managed programmes under the new Multiannual Financial Framework; and
  • Certain State aid measures that support the green and digital transition and are also relevant for the recovery from the economic effects of the coronavirus pandemic.

Continue Reading Amended GBER simplifies State aid rules for projects supporting the recovery from the COVID-19 pandemic

UK Government Confirms Commencement Date and Scope of NSI Regime

The UK Government has announced that the National Security & Investment Act (“NSIA”) will come into force on January 4, 2022. The NSIA introduces mandatory notification and pre-clearance requirements for certain qualifying acquisitions of control of companies active in 17 ‘core’ sectors.  The NSIA also enhances the powers of the UK Government to call-in for review other transactions which fall outside the mandatory notification regime but where national security concerns are considered to arise. The NSIA applies to all investors, irrespective of nationality, including those from the UK.  To support the legislation, the UK Government has established an Investment Security Unit (“ISU”) within the Department of Business, Energy and Industrial Strategy (“BEIS”) to manage and lead the assessment of filings that are received, including voluntarily, under the NSIA regime. An overview of the NSIA is provided in our earlier blogs – UK National Security and Investment Bill is published and the National Security & Investment Law is approved by Parliament.

Continue Reading Update on the UK’s National Security and Investment Act – what investors need to know

On 13-14 July, Covington’s Peter Camesasca and Sophie Bertin participated in panels discussing developments in Foreign Direct Investment (“FDI”) and Competition enforcement and compliance at the annual Competition Law Asia-Pacific Conference.

Foreign Direct Investment Regimes

On the first day of the conference, Covington partner Peter Camesasca moderated a group of diverse panellists on recent developments in FDI regulation regimes across the APAC region. Prof. Nell Lixia Zhou (Competition Law Center, University of International Business and Economics, Beijing) presented on the new FDI regime implemented in China, focusing particularly on: (1) the pre-entry national treatment of foreign investment and the Negative List; and (2) the investment promotion and protection aspect of the Foreign Investment Law. Carlo D’Andrea (EU Chamber of Commerce in China) shared insights from the Chamber’s most recent Business Confidence Survey of European companies active in China. Following on from the discussion on China, Ted Burgell (Business Council of Australia) reflected on recent changes to the more mature Australian FDI regime, including the new requirement for approval from the Foreign Investment Review Board (“FIRB”) in the case of proposed investments that raise national security concerns, regardless of the investment’s value, along with the FIRB’s powers to review investments and impose penalties. Arunan Kumaran (APEC Competition Policy and Law Group) discussed the varying approaches to FDI in the broader APAC region and what measures are needed to facilitate FDI in the context of the Covid-19 pandemic and trade wars in the region. Finally, Peter Camesasca rounded off the session by sharing perspectives on European FDI regimes and recent developments in light of the pandemic.

In-House Perspective: Addressing Challenges in Enforcement and Ensuring Compliance

The following day, Sophie Bertin participated in an insightful discussion with in-house counsels Welly Tantono (Secretlab) and Aidil Tupari (Petronas), on antitrust enforcement and compliance in the context of the Covid-19 pandemic and beyond. The panellists discussed challenges they have faced in operating a compliance programme virtually via digital means over the past year, with regards to delivery of training, on-boarding and integration of new employees, risk management, and embedding compliance culture from afar.

Related resources

Covington regularly publishes content covering developments in the FDI and Competition Law. Covington blog readers may be interested in the videos below, in which Peter Camesasca, Horst Henschen and Katherine Kingsbury discuss recent developments in the regulation of foreign direct investments (“FDI”) in Europe.

Foreign Direct Investment Regulation—German Developments


Foreign Direct Investment Regulation—UK Developments


EU Regulation on Foreign Subsidies

Covington’s four-part video series offers snapshot briefings on key emerging trends in UK Competition Law. In part four, James Marshall and Sophie Albrighton look across the horizon at the CMA’s plans for the future: what are the proposed reforms for competition law in the UK, what is the CMA looking to do post-pandemic, what are trends in terms of sustainability in competition law, and how will regulators cooperate internationally? They are joined by guest speaker Thomas Reilly, Head of Covington’s UK Public Policy practice based in London.

Pressed for time? Click here to download this session’s key takeaways.

In May 2021, the Court of Justice of the European Union (“CJEU”) published the summary of an appeal filed by the International Skating Union (“ISU”) against a ruling from the General Court (“GC”) which found that ISU rules restricting athletes from taking part in rival events infringed Article 101 TFEU. At the same time, a Spanish judge referred questions to the CJEU for a preliminary ruling concerning the compatibility of UEFA and FIFA regulations with EU competition law, which forced UEFA, the governing body of European football, to suspend disciplinary proceedings against members of the recent European Super League (“ESL”) that have not yet abandoned the project (i.e., Juventus, Barcelona and Real Madrid). This note briefly analyzes how the CJEU’s ruling on the ISU case could frame the response to the reference from the Spanish court.

Continue Reading The potential implications of the CJEU’s ISU judgement on the European Super League: Football “on thin ice”

On 3 June 2021, the European Court of Justice (“ECJ”) in case C-563/19 P Recylex v Commission dismissed Recylex’ appeal both to adjust its ranking in the leniency process and to receive partial immunity for parts of its participation in the Car Battery Recycling cartel.  The judgment, on appeal against the judgment of the General Court (“GC”) of 23 May 2019, provides guidance to companies considering a leniency application when there is already an ongoing European Commission (“Commission”) investigation.

Applying for leniency enables cartel participants to obtain reduced or annulled fines.  The 2006 Commission Notice on Immunity from fines and reduction of fines in cartel cases  (“Leniency Notice”) sets out the key principles:

  • the first company providing the Commission with sufficient evidence for an investigation will be granted full immunity;
  • subsequent applicants can receive fine reductions of 30-50%, 20-30% or 20% depending on the timing of their submission; and
  • companies can receive partial immunity for providing the Commission with details expanding the scope of the infringement.

Continue Reading ECJ provides guidance on key cartel questions: the partial immunity concept and rankings for leniency applications