In January 2019 EU member states issued statements with wide-ranging effects for intra-EU investment protection. All member states pledged, among other things, to terminate intra-EU bilateral investment treaties (BITs) by 6 December 2019 and instruct investors not to initiate any new intra-EU investment arbitration proceedings under BITs. This article sheds light on the background of this development and its potential impact on investment protection.
The European Court of Justice (ECJ) recently found that – in the context of Article 5 of EU Regulation 261/2004, which can exempt air carriers from their obligation to compensate passengers – a collision between an aircraft and a bird may constitute extraordinary circumstances. The ECJ adopted a divergent approach in its decision that appears to disregard the EU advocate general's 2016 opinion regarding the same case.
Virtual currencies have been analysed and considered by numerous policymakers at the EU level. According to the European Central Bank, the legal definition of 'virtual currencies' tends to vary depending on the context, while the European Banking Authority defines them as a digital representation of value that is neither issued by a central bank or public authority nor necessarily attached to a fiat currency, but used as a means of exchange and transferred, stored or traded electronically.
The European Commission recently published a legislative proposal amending the Bank Recovery and Resolution Directive to modify creditor hierarchy in insolvency with a view to facilitating the resolution of EU credit institutions. The proposal, which was fast tracked, resulted in the adoption of EU Directive 2017/2399, which amends the Bank Recovery and Resolution Directive as regards the ranking of debt instruments in insolvency.
The EU Prospectus Regulation's provisions concerning the format and content requirements for prospectuses will come into force on 1 July 2019. Ahead of the provisions, the European Securities and Markets Association intends to publish final draft guidelines on risk factors in early 2019. Issuers and their advisers will then need to ensure that they comply with the new regime in respect of any prospectuses to be published on or after 21 July 2019.
The European Commission's report 'Competition policy for the digital era' is its most substantial step yet towards crystallising the dialogue on the question of how competition law could or should adapt to the rapidly changing technological landscape and the growing role of the digital economy. However, while the report touches on a wide range of ideas and proposals, it openly notes that not all of these are developed in detail or go beyond "very preliminary" conclusions.
Calls to end geo-blocking have grown more audible since the start of the European Commission mandate in 2014 and its digital single market strategy. But does the reality live up to the rhetoric? The commission's new Geo-blocking Regulation sets out certain situations where treating consumers differently is unjustifiable (eg, online and offline sales of goods and services) and applies only to transactions that have a cross-border element.
The European Commission recently imposed a record fine of €4.34 billion on Google. The commission identified a number of abuses and concluded that Google is dominant in the markets for general internet search services, licensable smart mobile operating systems and app stores for the Android mobile operating system. In such an innovative and competitive industry, a decision and fine on this scale arguably sends the wrong message.
Discriminatory pricing as an abuse is a little-deployed area of EU antitrust law and there has been no recent enforcement at the European Commission level. The few existing cases concern extreme facts, involving natural or statutory monopolies such as airports or copyright collecting societies. A recent European Court of Justice judgment offers welcome clarification of the case law. It starts with the premise that not all price differences are illegal.
The General Court has confirmed that suppliers may restrict aftermarket access to authorised repairers for their spare parts. Suppliers can refuse unauthorised repairers access, even if they are considered to have a dominant market position over those parts. The case clarifies that even if suppliers are considered to be a monopoly supplier of spare parts or consumables for their installed base of customers, they are still entitled to control how their parts or consumables are distributed.