EU Competition Law – Anti-Trust
Any formal agreement or informal arrangement which prevents, restricts or distorts competition and which may affect trade between EU member states is prohibited.
In very broad terms, this means that it is not permitted to: directly or indirectly fix distributors’ prices; divide markets, discriminate among customers or distributors (by applying dissimilar conditions to equivalent transactions); tie products or services; or otherwise require unrelated supplementary obligations in relation to sales.
An informal ‘arrangement’ does not need to be written down in a contract. Side letters, e-mails or conversations, may all be ‘arrangements’ for this purpose.
Belgian competition law is in almost identical terms.
Abuse of Dominance
Although it can be difficult to provide proof, any unilateral abuse of a dominant position within the EU, or in a substantial part of it, which affects trade between Member States is prohibited. Belgian competition law is in almost identical terms.
If you have any doubts, FLINN is able to advise you about the application of competition law to your business. FLINN’s lawyers are also experienced in advising on Mergers and Acquisitions that have an EU dimension.
State aid implies that certain economic sectors, regions or activities are treated more favourably than others. State aid distorts competition to the extent that it discriminates between companies that receive ‘an advantage’ through state resources and those that do not. Nevertheless, granting such aid may be justified in certain circumstances.
The definition of state aid is very broad because ‘an advantage’ can take many forms. It is wide enough to include any selective economic benefit that an undertaking could not have obtained in the ordinary course of business. For example, if a company obtains privileged access to finance or infrastructure.
On the other hand, the state aid rules recognize that certain kinds of investments, for example in broadband infrastructure, renewable energy, research development and innovation, may not happen without state support.
If you face the need to comment on plans that will potentially benefit a competitor or if you need advice about whether proposed benefits could be qualified as notifiable state aid, FLINN stands ready to provide you with clear advice.
International Trade and Customs Law
The EU is based on a customs union which covers all trade in goods and applies a common external tariff to trade with non-member countries. It also involves the prohibition between EU Member States of customs duties on imports and exports and of any charges that have an equivalent effect.
FLINN advises on customs & trade laws including: import and export prohibitions, quantitative restrictions on imports, surveillance and protective measures under import rules; customs classification, access to the EU market and parallel imports, customs valuation procedures, customs warehousing and tariff suspension, procedures for entry of goods and post-clearance recovery of import duties.
The EU applies trade defence instruments in accordance with EU and WTO law, include safeguard measures, anti-dumping and anti-subsidy proceedings. The EU Commission examines complaints and decides whether to launch investigations or review existing measures. Whether you wish to complain about unfair trade or need to respond to an EU investigation, FLINN provides the legal services to support your business.
Energy Law and Regulation
Transition from large-scale centralized power generation requires an increasing volume of variable (decentralized & intermittent) generation from renewables to be incorporated in the electricity grids. Variable renewable power generation requires greater flexibility in both generation and the electricity network itself. One important means of providing such flexibility, ‘market coupling’, enables cross-border trade in electricity across Europe. The physical links which support market-coupling are the Interconnectors which permit the transfer of electricity across borders.
In practice, limiting export capacity on interconnectors can distort wholesale electricity prices in neighbouring countries, and segment the EU internal market. FLINN lawyers actively participated in the workshops leading to the adoption of the Network Codes that provide the supporting framework for trade in cross-border EU electricity markets. FLINN, as outside Counsel, can assist you where such complex fact patterns need to be analysed against the compliant implementation of the regulatory framework.
General Data Protection Regulation (GDPR)
The GDPR has applied throughout the European Economic Area since 25 May 2018 in all sectors of economic activity. It establishes a strict legal framework to ensure the protection of the personal data of your customers, employees and business partners.
Data controllers must ensure that they process data lawfully, fairly, and transparently, only for specified purposes and in a manner proportionate to those purposes. Data subjects have the right to access the data you process about them, to know how their data is being processed and to object to such processing. Personal data must be protected by technical and organizational security measures appropriate to the nature of such data and the risks of processing.
Data processors may incur liability for non-compliant processing and have specific obligations to support the data controllers for whom they work. Regulatory authorities have investigative and corrective powers. They can impose high administrative fines (up to a maximum of 4% of an undertaking’s total worldwide turnover) for non-compliance with GDPR provisions.
FLINN’s lawyers can advise you on compliance requirements for your web-site; data-privacy training, your contracts for processing and transfers of personal data, notably third country transfers including to the USA.
The fundamental principle of accountability requires that public bodies must appoint a data privacy officer (DPO). Others must also do so where, for example, the core activities of the data controller or data processor involve “regular and systematic monitoring of data subjects on a large scale”. FLINN can assist with selection and appointment of your DPO or indeed provide you with external DPO services itself.