European Union updates

Aviation

ECJ finds that bird strikes may constitute extraordinary circumstances
  • European Union
  • May 23 2018

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.

Emerging drone framework in the European Union
  • European Union
  • July 19 2017

As part of its ambitious aviation strategy, the European Commission has proposed harmonising European drone rules. The Single European Sky Air Traffic Management Research Joint Undertaking recently unveiled U-Space – a blueprint on the use of drones in low-level airspace. The European Aviation Safety Agency is seeing to it that U-Space has rules that ensure the safe integration of drones into the airspace.

European Commission proposes extending aviation emissions cap exemption
  • European Union
  • March 15 2017

The European Commission recently announced its proposal to amend the EU Emissions Trading Scheme, with the aim of contributing to EU climate objectives regarding the reduction of carbon dioxide emissions. Although the emission and compensation criteria have not yet been clearly defined, according to this new scheme, there will be three main phases to implement the measures set out by the International Civil Aviation Organisation.

EASA Part-NCC: what do financiers need to know?
  • European Union
  • July 20 2016

Private aviation in Europe will soon be subject to heightened regulatory standards following the implementation of EU Regulation 800/2013. Operators of complex motor-powered aircraft for non-commercial operations must comply with the new regulation standards from August. Aircraft financiers should consider how this affects their investment in these aircraft and whether action needs to be taken to mitigate any potential adverse exposure.


Banking

Contributed by Cleary Gottlieb Steen & Hamilton LLP
Beyond bail-in: reform of bank creditor hierarchy in European Union
  • European Union
  • January 26 2018

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.


Company & Commercial

EU Directive 2017/828 – cornerstone of increased shareholder engagement?
  • European Union
  • November 27 2017

EU Directive 2017/828, amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement, was recently published. The directive provides several options for member states when transposing the directive into national law. Depending on how the respective national legislature make use of these options, there will be minor or major changes to the national law.


Competition & Antitrust

Contributed by Baker McKenzie CVBA/SCRL
ECJ sets dominance record straight: price discrimination not all bad
  • European Union
  • June 07 2018

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.

General Court confirms manufacturers' right to set up authorised repair networks
  • European Union
  • April 26 2018

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.

Calling it 'legal' does not make it so
  • European Union
  • April 12 2018

The European Court of Justice recently dismissed an appeal against a General Court judgment which largely upheld the European Commission's prohibition decision taken against Telefónica and Portugal Telecom for a non-compete covenant in a share purchase agreement. The non-compete agreement purported to restrain the parties from competing in Portugal and Spain "to the extent permitted by law".

European Commission guidance on competition and patents in Internet of Things
  • European Union
  • December 21 2017

The European Commission's decisions in the abuse of dominance cases against Samsung and Motorola in 2014 and the European Court of Justice judgment in Huawei v ZTE in 2015 clarified the limits of standard-essential patent (SEP) holders' rights to seek injunctions against implementers under EU competition law. However, these cases left a number of important issues unresolved. As such, the European Commission recently presented its guidance on SEP licensing.

ECJ clarification means endive producers must turn over new leaf
  • European Union
  • December 14 2017

Under certain strict conditions, agricultural producers can coordinate their pricing and quantities without falling foul of the EU competition rules. However, the European Court of Justice recently confirmed that not all practices by agricultural producer organisations and their associations are automatically excluded from the application of those rules. This judgment is a timely reminder that the EU competition rules apply broadly to the agricultural sector and that any exclusions will be interpreted restrictively.


Corporate Finance/M&A

European Union to tighten control over foreign investment
  • European Union
  • November 01 2017

The European Union has proposed a new EU framework for screening foreign investment that raises security and public order concerns for the European Union and its member states. The commission intends to launch, and possibly complete, the proposed framework by the end of 2018. Opposition by several member states means that it is unclear whether the proposal will be approved by the Council of the European Union.