Doing Business in Europe: A JD Supra Legal Reader

For your reference, here’s a roundup of recent legal advisories on the broad topic of doing business in the European Union and its member countries:

EU Internal Energy Market Legislation Not Fully in Force (King & Spalding)

“The Electricity and Gas Directives of the EU’s Third Energy Package were required to be implemented in EU national legislation by March 3, 2011 (with a year’s grace period until March 3, 2012 for unbundling rules)… On April 26, 2012, the European Commission (Commission) sent eight ‘reasoned opinions’ to five Member States following their failure to implement the new rules on further opening of the EU’s energy markets.” Read on>>

The General Court of the EU Upholds European Commission’s Decision on MasterCard Fees (McKenna Long & Aldridge LLP)

“On May 24, the General Court of the EU delivered its long awaited judgment in Case T-111/081, confirming the Commission’s finding that multilateral interchange fees (MIFs) applied by MasterCard in cross-border transactions restrict competition as they inflate the cost of card acceptance by merchants without leading to benefits for consumers. The judgment also confirmed that banks, in the framework of a card payment scheme, cannot restrict competition by agreeing on certain charges to the detriment of consumers.” Read on>>

Standing to Challenge European Commission Decisions on Complaints (McDermott Will & Emery)

“A recent judgment of the EU General Court highlights a deadly pitfall when making complaints to the European Commission. If the complaint is a general complaint about a Member State’s failure to comply with the EU Treaty, the complainant will generally have no standing in court to challenge the Commission’s final decision in the matter. On the other hand, if the complaint is made pursuant to a specific regulation that confers the right to make a complaint in certain circumstances, the complainant will often have a better chance of establishing standing to challenge the Commission’s final decision.” Read on>>

Rebate Schemes and Discount Practices by Dominant Companies Under EU Competition Law: Tomra Appeal Decision (Dechert LLP)

“The European Court of Justice recently handed down a significant decision holding that the Tomra Group had abused its dominant position through the use of exclusionary strategies in the European Economic Area. The judgment follows the General Court and ECJ’s traditional formalistic, or ‘per se,’ approach, which generally treats rebate schemes implemented by dominant entities as anti-competitive.” Read on>>

EU Environment Report – May 2012 (White & Case LLP)

“On 10 May 2012, the Council of Ministers endorsed new regulations seeking to minimise environmental and health risks of biocidal products. These products include insecticides, disinfectants and repellents, but not medicines or agricultural pesticides. The rules were originally agreed to under a deal struck by Members of Parliament last November and subsequently approved in January this year.” Read on>>

ECJ Decision of 10 May 2012 in Santander Case: French Withholding Tax on Dividend Payments to Non-French Resident Investment Vehicles Is Not Compatible With EU Regulations (Dechert LLP)

“Domestic withholding tax imposed by EU Member States on dividend payments made to non-resident investment vehicles has been an ongoing issue for some time now, due to the argument that such taxes may restrict the free movement of capital within the EU. The European Court of Justice recently handed down a major decision regarding this matter, finding that the French withholding tax levied on dividend payments by French-resident companies to non-resident investment vehicles is not compatible with EU law.” Read on>>

CJEU Ruling in Santander: Withholding Tax on Dividends Distributed to Non-Resident UCITS Infringes EU Freedoms (McDermott Will & Emery)

“Santander concerned the compatibility with EU Law of the provisions of the Code General des impôts, which levies a 25 per cent withholding tax on dividends originating in France and received by non-resident UCITS. This is in contrast with dividends distributed to French-resident UCITS, which are exempted from the withholding tax. According to well-established CJEU case law, having two such different regimes constitutes a restriction of fundamental freedoms under EU law. Different laws are permissible only if the difference in treatment relates to situations that are not comparable objectively, or if the restriction is justified by an overriding reason of public interest.” Read on>>

European Parliament Adopts Legislative Resolution on Financial Transaction Tax (Orrick, Herrington & Sutcliffe LLP)

“On 23 May 2012, the European Parliament approved an amended version of the European Commission’s proposal of 23 September 2011 for a Council Directive on a common system of financial transaction tax (FTT). The Resolution states that such a FTT should go ahead even if only some member states would opt for it.” Read on>>

Time for a sharp Grexit? (Chris Robinson)

“At last our politicians are admitting the possibility of a Greek exit, and the need to plan for it. But what are the implications for businesses trading with Greece, or with assets there? Here’s one lawyer’s view. A Greek exit would take one of two forms: a unilateral decision by Greece, or a managed process agreed by the whole EU, or at least the Eurozone. An exit means breaches of the EU treaties, so we are talking about political decisions rather than legal mechanisms. Anything done without formal agreement by all EU member states would be illegal, but that doesn’t mean it can’t and won’t happen – international law doesn’t work like that” Read on>>

Regulating Europe’s Derivative Markets – Where Are We Now? (Morrison & Foerster LLP)

“After the publication of fifteen revised drafts of the long-awaited Regulation of the European Parliament and Council on OTC Derivatives, Central Counterparties and Trade Repositories (commonly known as “EMIR”), you would be forgiven for thinking that the Europeans were never likely to see a conclusion to legislative attempts to regulate their over-the-counter (“OTC”) derivatives market. However, on 9 February 2012, a trialogue meeting of the European Parliament, the Council and the European Commission at long last reached agreement on the final text of EMIR, and since we last provided an update on OTC derivatives reform in the EU, the wheels of the legislative process have turned extensively, even if slowly.” Read on>>

Council of the EU Mandatory Rotation Rule for Credit Rating Agencies (Orrick, Herrington & Sutcliffe LLP)

“On May 21, the Council of the European Union agreed on a draft proposal that would introduce a mandatory rotation rule requiring issuers who pay credit rating agencies to rate their structured finance products with underlying resecuritized assets to switch to a different credit rating agency every four years. The proposal would also require issuers to engage at least two different credit rating agencies to rate structured finance products.” Read on>>

Rome’s Burning: What Am I Missing? (Dechert LLP)

“So after another bad news week in Europe, I’m a bit gloomy about the future of the capital markets. As we try to run a business and help our clients, I’ve got this narrative running through my head about Europe. I keep running this movie back and forth in my head hoping it will help me tease out what will be in the last reel. Look, we try to make these blogs contain some bon mots of immediate utility.” Read on>>

Spain’s Employment Law and 2012 Labor Reform (Fisher & Phillips LLP)

“In the face of a growing economic crisis, a 23% unemployment rate and an unemployment rate of 50% affecting the youth, the Spanish Parliament recently passed drastic reforms relevant to Spanish labor law known as Royal Decree Law 3/2012. The enactment of these reforms will make it easier and cheaper for employers to lay off workers, will provide incentives for employers to hire younger workers, and is expected to increase employer confidence.” Read on>>

Doing Business in Ireland (Fisher & Phillips LLP)

“Beginning in the 1970’s, the Republic of Ireland adjusted its business tax law for foreign investors and set out to establish itself as a hub for multinational businesses. It succeeded well in that endeavor but then experienced the same economic downturn as most of the rest of the world in the late 80’s. It appears that Ireland is attempting to come back economically through foreign investment once more. As reported in The Irish Times on May 17, 2012, an organization called Startupbootcamp had, since January, hosted ten startups in an accelerator program in a warehouse in Dublin.” Read on>>

Proposed Restrictions on Fund Offers to Swiss Residents (Morgan Lewis)

“Proposed amendments to the Swiss Federal Act on Collective Investment Schemes (the CISA) issued on March 2 would impose additional requirements and restrictions on non-Swiss asset managers and distributors privately offering funds to Swiss residents. Although the CISA currently prohibits ‘public marketing’ of funds that are not authorized in Switzerland (foreign funds), the Federal Ordinance on Collective Investment Schemes provides that marketing is not public if it is directed exclusively toward ‘qualified investors’ through customary marketing methods for this market (e.g., one-on-one contacts).” Read on>>

Debenture – the new security instrument soon to be introduced in Macedonia (Karanovic & Nikolic Law Office)

“A number of companies in Macedonia are having problems with maintaining their solvency at a desirable level in order to carry out their ordinary course of business. Apart from reasons which may be attributed to the fragile nature of the Macedonian economy, another reason for this occurrence is the lack of financial discipline amongst Macedonian companies and state controlled entities, often resulting with their failure of making timely payments of their due financial obligations.” Read on>>

Liberalizations Decree: Main Relevant Changes and Powers of the Italian Competition Authority (McDermott Will & Emery)

“… by 24 September 2012, the IP specialised sections of Italy’s Tribunals and appeal Courts (renamed ‘business specialised sections’) will have jurisdiction also over all claims for damages caused by national and EU antitrust infringements, as well as corporate and public procurement matters involving limited companies.” Read on>>

UK Public Procurement Law Digest: Successfully Setting Aside UK Procurement Contract Awards (Morrison & Foerster LLP)

“Ever since UK law was changed to permit courts to set aside improperly awarded public contracts, there has been a series of unsuccessful attempts to invoke the new remedy. Successful set-aside applications have been rare enough that, when one does finally come along, it’s worth examining to see if it provides pointers for future claimants. This edition of the MoFo UK Public Procurement Law Digest explains the approach adopted by the courts in a series of cases in Northern Ireland, where the contracting authorities were required to set aside contract awards because of irregularities in the procurement process.” Read on>>

See also: Got Compliance? The EU Cookie Law & What You Need to Do

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