Legal News

EUIPO v Neoperl AG ( AG opinion) Case C‑93/23 P What are the practical implications of this case? The Advocate General’s opinion clarifies the limits on how far the General Court may modify a decision of the EUIPO Board of Appeal. The General Court ought not to reach findings on facts that the earlier tribunal has not examined and determined, as doing so would strip that body of its function. In practical terms, parties should contest General Court judgments where they contain rulings on points that were not decided in the appealed case. The opinion reviews the appeal filtering mechanism and explains why this appeal was permitted to proceed. The conditions to be satisfied are stringent, and appeals progress only where they raise an issue of significance for the unity, consistency or development of EU law. The present appeal invites the Court of Justice to...

JX v FTI Touristik Gmb H, Case C-774/22 What are the practical implications of this case? The JX v FTI Touristik Gmb H judgment is a landmark illustration of how the Brussels I (recast) Regulation reinforces consumer protection by enabling consumers to pursue proceedings in their local court. Crucially, the ruling prevails over domestic procedural rules, including those in Germany, which would ordinarily oblige a consumer to sue at the trader’s seat. By contrast, the Regulation permits consumers to bring actions before their home courts, even where the company is established in the same Member State. This is especially pertinent where the contract has cross-border features, for example international travel, as it lightens the legal burden on consumers. For firms, the decision means they must be ready to defend claims away from their place of business, potentially at the consumer’s home forum. This may drive up legal...

Europe’s high court ruled that the clauses do not amount to ‘ancillary restraints’ exempt from competition rules, as Booking.com could still run its online travel business without them, and thus also cannot claim any shelter under that exception. The court explained there is no inherent link between the survival of the hotel reservation platform’s core activity and imposing such clauses, which plainly create appreciable restrictive effects in the market. It added that, besides tending to lessen competition among different hotel reservation platforms, the clauses threaten to drive out smaller platforms and fresh market entrants over time in practice. The ruling responds to a request from a Netherlands court on how to assess Booking.com’s liability for the pricing clauses in connection with private litigation initiated subsequent to a German government enforcement action......

In a statement, the General Court explained it reached this outcome despite endorsing most of the European Commission’s findings, as the Commission had failed to consider all of the pertinent circumstances in its assessment of the length and duration of the contractual clauses it had deemed abusive. The Court additionally concluded that the Commission made mistakes in defining the market covered by the 2016 clauses in agreements with Google’s online advertising brokering service, Ad Sense for Search. In its summary of the decision, it observed that the Commission had not shown that the three identified clauses each amounted to an abuse of a dominant position, or that together they formed a single, continuous infringement. Consequently, the Court found the Commission had not proved that the clauses in those contracts stifled innovation......

In this issue: EU fundamentals Commercial Data protection and cybersecurity Energy Environment Financial services IP Life sciences International trade Daily and weekly news alerts New and updated content Trackers Latest Q& A EU fundamentals European Commission President unveils new college of commissioners for 2024–2029 The President of the Commission, Ursula von der Leyen, set out proposals for the revised make-up and set-up of the Commission for the 2024–2029 period, following the June 2024 European Parliament elections. She stated the Commission will comprise four women and two men as Executive Vice- Presidents, and that each Executive Vice- President will also hold a dedicated portfolio, to be pursued in close cooperation with other Commissioners on their brief. Reflecting the Draghi report issued in September 2024, the President again underlined the Commission’s focus on competitiveness and reiterated that message. Commissioners-designate must complete several stages before taking office, in sequence. First come confirmation hearings in Parliament, provisionally scheduled for late October 2024....

The Technical Board of Appeal ( TBA) at the European Patent Office decided on 2 July 2024 that the German pharmaceutical heavyweight may retain its patent. It threw out an appeal by the Italian business De Simone, which had maintained that the company had largely duplicated the same chemical compounds reported in earlier studies, according to the ruling made public on 16 September 2024. Bayer contended that gadolinium chelate compounds perform better in MRI scans because they exhibit higher relativity—the measure of an MRI contrast agent’s sensitivity—than the compounds that were used before......

Under the revised proposal, Chinese battery electric cars sold in the initial three years, provided they fall within a yearly ceiling of 206,213 units and are priced above the Minimum Import Prices set for various EV types, would avoid the bloc’s countervailing levies. For the fourth and fifth years, the annual duty-free allowance tied to MIPs would return to a non-injurious threshold of 412,425 units, per the offer seen by MLex. Inside this allocation, BEV consignments with a Net Sales Price exceeding the MIP would not face countervailing duty, it adds. In either scenario, once the yearly quota is used up, no matter the year, exports of the product in question would become liable for the applicable countervailing duty. All imports from Chinese EV manufacturers not taking part in the arrangement......

Background to the Dutch DPA’s investigation As is often the case, the AP’s scrutiny of Uber’s processing first arose following complaints from data subjects themselves. The French human rights organisation Ligue des droits de l'homme et du citoyen ( LDH) submitted two collective complaints in June 2020 and September 2021 respectively to the French DPA, the Commission Nationale de l' Informatique et des Libertés ( CNIL), on behalf of 172 Uber drivers, specifically highlighting difficulties enforcing data subject rights and third‑country data transfers. As Uber’s EU headquarters are in the Netherlands, the CNIL formally referred the matter to the AP. In April 2021, the AP notified Uber that it had begun an official investigation. What processing was at issue? During the proceedings, the AP reviewed and assessed transfers of sensitive personal data of Uber drivers between Uber BV ( UBV) and Uber...

In this issue: EU fundamentals Competition and state aid Data protection and cybersecurity Financial services Energy Life sciences TMT International trade Daily and weekly news alerts New and updated content Trackers EU fundamentals European Commission publishes competitiveness strategy for Europe The European Commission has issued a report, ‘ The future of European competitiveness’, together with an in-depth assessment featuring recommendations to reinforce the EU’s competitiveness and stimulate sustainable growth across the Union. Mario Draghi, former President of the European Central Bank, was commissioned to set out his personal vision for Europe’s competitive future. The report’s conclusions will inform the Commission’s work on a new agenda for Europe’s sustainable prosperity and competitiveness, notably shaping the forthcoming Clean Industrial Deal, due to be presented within the first 100 days of the new...

European General Court rejects bid to annul EU sanctions on Russia’s National Settlement Depository The European General Court dismissed an effort by Russia’s National Settlement Depository to overturn EU sanctions, finding the measures proportionate to the bloc’s aim of reducing Russia’s capacity to finance the invasion of Ukraine and supported by sufficiently detailed reasoning. The court stated that the contested acts are designed to cut Russian state revenues and apply pressure on the Russian government, thereby limiting its ability to fund its activities; consequently, targeting economic operators that provide the Russian authorities with material or financial backing aligns with that purpose and cannot be considered inappropriate. The EU introduced sanctions against the Russian government in February 2022 following the invasion of Ukraine, before expanding them to encompass entities such as the depository......

The report observes that the main factor behind the widening productivity gulf between the EU and the US — which began in the mid‑1990s — is Europe’s missed chance to harness the first internet‑led digital revolution, both by founding new tech companies and by diffusing digital technologies throughout the broader economy. Spotlight on digital technologies Draghi’s analysis notes that, stripping out the tech industry, EU productivity over the last twenty years is broadly on a par with the US. However, Europe trails in the breakthrough technologies set to underpin future growth. Since 2017, about 70% of foundational AI models have originated in the US, and just three American hyperscalers capture more than 65% of the global as well as the European cloud markets, the report states. In practice, the EU cloud services market has largely slipped to US-based providers. Quantum computing is flagged as the next major wave of...

On 23 April 2024, the European Parliament endorsed the European Commission’s package of payments services measures, originally issued by the Commission in 2023. The initiative aims to modernise and strengthen the EU’s digital finance ecosystem, and comprises Payment Services Directive III to be adopted alongside the Payment Services Regulation, together with the regulation establishing a framework for financial data access. The forthcoming PSD III refreshes the existing payment services directive, seeking to further hone and broaden the regulatory regime for payment services. It will also repeal and replace the Electronic Money Directive, creating a single rulebook overseeing both payment services and e‑money activities. A unified set of conditions would apply to licensing, conduct of business and prudential oversight, as e‑money institutions will be authorised as payment institutions under the payment services...

The Court of Justice found that the European Commission’s zeal to net potentially risky transactions had distorted the equilibrium of merger control and the 'effectiveness, predictability and legal certainty that must be guaranteed to the parties to a concentration'. The ruling will come as a relief to businesses and their advisers who have bristled at the peril created in 2021, when the Commission adopted a policy of pulling in deals that had not been notified in Member States yet could still be referred to Brussels. For those doing deals, the decision reads like a wish fulfilled. The court stressed that EU merger rules had created an 'effective and predictable' oversight regime, mindful of 'legal certainty' and premised on having transactions examined straightforwardly and in the most fitting forum. To achieve that, there must be a 'clear allocation' of competences between the...

In this issue: EU fundamentals Data protection Energy Environment Financial services Life sciences Lex Talk®EU Law: a Lexis®Nexis community Daily and weekly news alerts New and updated content Trackers EU fundamentals European elections—what’s next? From 6–9 June 2024, EU citizens headed to the polls to choose the tenth European Parliament. After negotiations on group line-ups—featuring parties changing blocs and several previously non-aligned MEPs joining political groups—the make-up of the 2024–2029 Parliament is now apparent. As forecast, the chamber has moved to the right. But what does that entail? Lavan Thasarathakumar, senior adviser at Hogan Lovells, has contributed to this assessment. See News Analysis: European elections—what’s next? Data protection Dutch DPA fines Clearview €30.5m for violations of EU GDPR The European Data Protection Board announced that the Dutch Data Protection Authority ( DPA) has issued a €30.5m fine to...

The Court of Justice stated that the Commission is not permitted to examine transactions referred by national competition authorities in the EU where there is no European link and the deals fail to meet domestic value thresholds. Handing down its judgment, the Court underlined that notification thresholds are a vital safeguard for predictability and legal certainty for undertakings. Businesses must be able to establish with ease whether a planned transaction requires a preliminary review and, if so, which authority will handle it and under what procedural rules. Responding to the ruling, Margrethe Vestager, Vice- President of the Commission, observed that some transactions falling short of EU notification thresholds may still pose risks to competition within Europe. She added that the Commission will consider next steps to ensure it can scrutinise the limited number of cases where a deal could affect Europe but does not...

Takeaways from first EU foreign subsidy M& A investigation This matter concerns the planned purchase by Emirates Telecommunications Group Company PJSC (e&) of PPF Telecom Group B. V. ( PPF), excluding PPF’s Czech operation. e& is a UAE state-controlled telecommunications operator, while PPF is a European operator. Under the FSR, the Commission may scrutinise and remedy subsidies granted by non- EU states to companies active in the EU, including EU-based firms. The regime covers certain large M& A deals and public procurement, and the Commission can also open investigations into other market situations on its own initiative. The duty to notify qualifying transactions for clearance has applied since 12 October 2023. The FSR now acts as a third layer of general regulatory oversight for some EU-relevant deals, alongside merger control and foreign direct investment screening. Whether a deal must be notified depends in part on the...

Appointment of EU leaders The outcome of European Parliament elections is closely bound to the choice of who leads the EU’s executive arm, the European Commission. That is because the Commission President generally comes from the political family that wins the largest share of seats in those elections, aligning the executive’s leadership with the parliamentary result. The newly constituted Parliament then has the role of either approving or rejecting the Commission President, who is put forward by the European Council following a qualified majority vote. In addition, the Parliament examines and confirms the entire College of Commissioners—26 Commissioners in total, one nominated by each EU Member State—who are responsible for core policy domains for the Union, including trade, health, industry, environment and competition. These Commissioners are political appointees, with candidates proposed by national...

In this issue: Competition and state aid Data protection and cybersecurity Financial services Life sciences TMT Daily and weekly news alerts New and updated content Trackers Competition and state aid State aid— Commission launches call for evidence on revision of aviation State aid guidelines The Commission opened a call for evidence to collect views on the scope and substance of its update to the guidelines on state aid for airports and airlines (the Aviation Guidelines). First adopted in 2014, the Aviation Guidelines define conditions under which state support measures for airlines and airports are considered compatible with the single market. In 2018, they were revised to continue the specific regime permitting operating aid for airports handling up to 700,000 passengers annually, through to 3 April 2024. In 2023, the 10‑year transitional period for operating aid to all...

The rise and circulation of pornographic deepfakes, the distribution of intimate images without consent, and online sexual harassment fall most heavily on women and other marginalised communities in particular, affecting both high-profile figures such as Taylor Swift and everyday social media participants. With such conduct proliferating, the EU has signalled its resolve to curb it on digital platforms—no simple or straightforward undertaking, yet one the 27-member bloc is intent on addressing through the EU DSA. Yet the EU DSA stops short of listing particular categories of unlawful content. Accordingly, dovetailing the EU DSA with sector-specific and domestic rules is vital to counter the expanding array of illegal material online—among them the newly adopted Directive ( EU) 2024/1385 on combating violence against women and domestic violence (see: LNB News 28/05/2024 21). In force since 16 November 2022, the EU DSA targets illegal content and...

In this issue: Financial services IP TMT International trade Daily and weekly news alerts New and updated content Trackers Financial services The European Systemic Risk Board ( ESRB) has contacted the European Parliament, the European Commission and the Council of the EU in the context of the current law-making on selected reporting duties in financial services and investment support, and following the first readings of the proposal by Parliament and Council. The ESRB argues it should receive ex ante access to granular datasets gathered by the three European Supervisory Authorities—the European Banking Authority, the European Insurance and Occupational Pensions Authority, and the European Securities and Markets Authority—through structured, routine supervisory reporting. See: LNB News 20/08/2024 11. The European Securities and Markets Authority ( ESMA) has released translations, covering all official EU languages, of its guidelines on fund names that use environmental, social and governance or wider...