European Legal Spotlight: Privacy and Data Protection, Anti-Corruption, Competition Law, & More

For your reference, a roundup of commentary and analysis on a broad range of legal matters relevant to companies active in Europe:

Competition Law

Below-cost Pricing by a Dominant Company May Not Constitute a Breach of EU Competition Law (K&L Gates LLP)

“A recent European Court case has confirmed that a dominant firm will not breach EU competition law simply by selling its services below their total cost, as long as the services are charged above their ‘incremental’ cost. Furthermore, an abuse of dominance will only occur where it can be shown that the company intended to remove a competitor from the market as a result of its pricing strategies.” Read the full update>>

New UK Competition and Markets Authority: What’s in a Name? (Dechert LLP)

“On 16 March 2011, the UK government’s Department for Business, Innovation and Skills (BIS) launched a consultation proposing a number of reforms to the UK competition regime. After considering the responses on its proposals from interested stakeholders, the BIS released its final response on 15 March 2012. In a retreat from a wide array of changes proposed in the initial consultation, the number of changes actually endorsed is relatively limited.” Read the full update>>

The UK’s Private Healthcare Market is Under the Competition Spotlight (King & Spalding)

“The market for privately funded healthcare services in the UK has been referred to the UK’s Competition Commission (CC) for investigation. The Office of Fair Trading (the UK’s competition regulator) suspects that competition for private healthcare is prevented, restricted or distorted. The CC will investigate whether the OFT’s concerns are well-founded.” Read the full update>>

English Tribunal Confirms Litigation Privilege Can Apply in Competition Authority Investigations (McDermott Will & Emery)

“The UK Competition Appeal Tribunal recently confirmed that litigation privilege may attach to documents prepared for an investigation by a national competition authority, if the proceedings were adversarial rather than inquisitorial at the time the documents were prepared. The judgment brings clarity to the wider issue of whether competition authorities should be allowed access to this kind of evidence in order to prove anti-competitive conduct.” Read the full update>>

Privacy and Data Protection

EU Issues New Data Protection Proposals (Duane Morris LLP)

“Much as was anticipated, the European Commission announced its long-awaited proposals on Jan. 25, 2012, on what are likely to be viewed as drastic changes to data protection law in Europe. The aim of the proposals is to make EU privacy laws fit for the 21st century, and they seek to both change the system and increase penalties for breach, with fines of up to 2% of a corporation’s annual global turnover.” Read the full update>>

The White House and European Union Privacy Proposals (Snell & Wilmer L.L.P.)

“Given the complexity of the proposed regulation and the divergent viewpoints in the EU member states, it is likely that the [proposed EU privacy] regulation will be modified in the coming months… It is nonetheless important for companies to consider the salient features of the proposed law well before it is enacted and goes into effect because the proposed law will affect not only the collection and processing of data in the EU, but also the transfer of such data outside the EU. The law may also affect the internal structure of many companies’ data protection efforts.” Read the full update>>

Anti-Corruption Efforts

OECD Report on The UK’s Anti-Bribery Framework (McDermott Will & Emery)

“The Organisation for Economic Co-operation and Development (OECD) has published a report (the Report) on the implementation and application in the United Kingdom of the OECD Convention on Combating The Bribery of Foreign Public Officials in International Business Transactions. The Report sets out a number of recommendations on the application and enforcement of anti-bribery measures in the UK and evaluates the noteworthy progress achieved by the UK authorities since the last review in 2005.” Read the full update>>

UK Financial Regulator Issues Report on Bribery and Anti-Corruption Controls, Proposes New Guidance (BuckleySandler LLP)

“On March 29, the United Kingdom’s Financial Services Authority (FSA) published the findings of its thematic review into anti-bribery and corruption systems and controls in U.K.-based investment banks. The FSA review also looked at related topics including (i) gift-giving practices and controls, (ii) staff recruitment and vetting, (iii) training, and (iv) incident reporting.” Read the full update>>

FSA fines Ian Hannam Chairman of Capital Markets at JP Morgan Cazenove for Market Abuse (Orrick, Herrington & Sutcliffe LLP)

“On 3 April 2012 the FSA published a Decision Notice stating that the FSA had decided to fine Ian Hannam £450,000 for two instances of market abuse (improper disclosure). In the FSA’s opinion, Hannam disclosed inside information in two emails sent in September and October 2008 to a prospective client considering buying a stake in Heritage Oil Plc, an existing J P Morgan client for which Hannam was the lead adviser.” Read the full update>>

FSA Fines Coutts £8.75m for AML Control Failings (Katten Muchin Rosenman LLP)

“On March 26, the UK Financial Services Authority (FSA) announced that it had fined Coutts & Company £8.75 million (approximately $14 million) in relation to failures to take reasonable care to establish and maintain effective anti-money laundering (AML) systems and controls relating to high risk customers including politically exposed persons (PEPs).” Read the full update>>

Additional Analysis

The New Proposal for a Regulation on the Statute for a European Foundation: Towards Harmonizing the Regime for Foundations Operating Across the EU (McKenna Long & Aldridge LLP)

“On February 8, 2012 the European Commission published a proposal for a European Foundation Statute in order to facilitate the cross-border activities of public benefit purpose foundations and make it easier for them to support public benefit causes across the EU. The adoption of the proposal followed the Single Market Act Communication adopted in April 2011 which highlighted the need to put an end to market fragmentation and to eliminate barriers to the free movement of services, innovation and creativity in order to deliver growth and employment, and promote competitiveness.” Read the full update>>

Financial Services Europe and International Update – April 2012/Issue 5 (Dechert LLP)

“The Commission, it will be recalled, is seeking to complete the EU regulatory framework for securities, as part of its efforts to create a sounder financial system. Two of the three main steps are already in progress, with trading being delivered through MiFID and clearing through EMIR. The final stage in the process to be addressed is settlement, where concerns have been raised at the absence of an efficient single internal market.” Read the full update>>

ADR hits Europe (JAMS, The Resolution Experts)

“While mediation is a process familiar to most U.S. attorneys, this alternative dispute resolution method is undergoing a significant evolution in the European Union, and specifically Italy. In particular, the concept of mandated mediation — where parties involved in certain types of disputes must try to mediate before heading to court — is gaining in popularity. Backed by some convincing statistics, the Italian model for mediation is gaining traction throughout Europe as a way of dealing with an overburdened judiciary.” Read the full update>>

European Parliament Adopts EMIR (Katten Muchin Rosenman LLP)

“Following the February 9 announcement that the European Parliament Council and Commission had reached agreement on the European Market Infrastructure Regulation (EMIR) on over-the-counter derivative transactions, central counterparties and trade repositories… The press release issued by the Parliament announcing EMIR’s adoption is headlined ‘Clamping Down on the Derivatives Trade.’ It highlights areas where the Parliament considers that it influenced the final text of EMIR.” Read the full update>>

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

“The European Chemicals Agency (ECHA) released its very first Community Rolling Action Plan (CoRAP) listing 90 substances to be evaluated under the REACH Regulation’s substance evaluation process. This year 36 substances will be evaluated by 17 member states, with the remainder to be examined in 2013 and 2014. Included in the CoRAP’s list are new car refrigerant HFO-1234yf and bisphenol A, to be evaluated by Germany this year.” Read the full update>>

European IP Bulletin — Issue 88, March 2012 (McDermott Will & Emery)

“Since 2001, Football Dataco Ltd (FDL) has organised the English and Scottish football leagues. Yahoo! UK Ltd (Yahoo!) and others have used the fixture schedules produced by FDL to provide news and to organise betting activities. FDL sought payment from Yahoo! for the use of the football fixture lists, claiming protection under the Database Directive on the basis of both copyright and the sui generis database right. Following European case law, the UK courts rejected the possibility of protection based on the sui generis right, but the question of whether such fixture lists might be protected by copyright was referred to the CJEU.” Read the full update>>

New Challenges for the Solar Industry in 2012 (K&L Gates LLP)

“Within the first three months this year, two legislative changes in Germany and on EU level have been adopted that will bring weighty challenges to the solar industry. [T]he Federal Parliament (Bundestag) adopted the Act on changes of the legal framework for electricity from solar energy on March 29, 2012. The exceedingly quick legislative procedure – the cabinet only introduced the bill on February 29, 2012 – was accompanied by considerable criticism from the solar industry. The agreed version of the law has dropped some of the most controversial points and enhanced protection of legitimate expectation with broader interim provisions.” Read the full update>>

Non-EU Bids on EU Public Contracts (Morrison & Foerster LLP)

“The European Union’s rules on government procurement have traditionally been admirably open and non-discriminatory, with none of the “Buy Local” preferences found elsewhere in the world. That seems likely to change in view of a draft Regulation, issued by the European Commission, which will allow EU public bodies to exclude certain bids from outside the EU where such tenders comprise a significant element of non-EU goods and services. Despite denials that this is protectionist in nature, the Regulation will allow EU public bodies to discriminate against some foreign bids if they wish to do so.” Read the full update>>

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