EU/Competition: Energy

Newsletter 12/2020

The Commission published 19.11.20 its EU Strategy on Offshore Renewable Energy. The Strategy proposes to increase Europe’s offshore wind capacity from its current level of 12 GW to at least 60 GW by 2030 and to 300 GW by 2050. The Commission aims to complement this with 40 GW of ocean energy and other emerging technologies such as floating wind and solar by 2050. The Commission estimates that investment of nearly EUR 800 billion will be needed between now and 2050 to meet its proposed objectives. To help generate and unleash this investment, the Commission will: (i) Provide supportive legal framework: To this end, the Commission clarified the electricity market rules in an accompanying Staff Working Document and will assess whether more specific and targeted rules are needed. The Commission will seek to ensure that the revisions of the State aid guidelines on energy and environmental protection and of the Renewable Energy Directive will facilitate cost-effective deployment of renewable offshore energy. (ii) Help mobilise relevant funds to support the sector’s development: Horizon Europe funds will be mobilised to support research and development, particularly in less mature technologies. (iii) Ensure a strengthened supply chain: The Strategy underlines the need to improve manufacturing capacity and port infrastructure and to increase the appropriately skilled workforce to sustain higher installation rates. The Commission plans to establish a dedicated platform on offshore renewables within the Clean Energy Industrial Forum to bring together all actors and address supply chain development. Large parts of the Norwegian industry is particularly well-positioned to take part in the investments in offshore renewables in the EU through the coming years. Visit the strategy web page here.

In a 25.11.20 decision the Commission found that a competitive tender mechanism introduced by Germany to compensate hard coal-fired power plants for phasing out earlier than foreseen promotes EU climate objectives and is in line with State aid rules. Visit the case dossier for details here.

In a 25.11.20 decision the Norwegian Competition Authority concluded that Verisure and Sector Alarm, by far the two largest players in the market, have engaged in illegal market sharing practices in the period from 2011 until 2017. According to the NCA Verisure and Sector Alarm agreed not to sell alarm services to each other’s customers through door-to-door selling. During the period in question, there was a substantial number of direct contacts between the two companies, according to the NCA, including: (i) Physical meetings, telephone conversations and e-mail correspondence. (ii) The two companies provided each other with detailed information about market strategies. (iii) They encouraged each other to comply with the agreed practices, and threatened each other with retaliatory measures when detecting deviations. The NCA carried out unannounced inspections 20.06.17 at the premises of Verisure and Sector Alarm. During the inspections, the NCA seized documents and electronically stored material. After the inspections, a substantial amount of evidence was systemised and examined, based on which the NCA conducted interviews with employees from both companies in the period February 2018 until September 2020. The decision followed a 17.06.19 Statement of Objections. The 25.11.20 decision imposes a NOK 766 million fine on Verisure. Sector Alarm accepted the SO and was fined NOK 467.3 million in a separate decision of 04.07.19. This is the highest fines in a cartel case in Norway to date.

The EFTA Surveillance Authority (ESA) approved 12.11.20 amendments to a guarantee scheme in Norway that ensures access to liquidity for companies, including a prolongation of the scheme. ESA approved 26.03.20 a guarantee scheme ensuring access to liquidity for small and medium-sized enterprises (SMEs) facing dwindling revenues due to the on-going COVID-19 pandemic. The approved scheme was aligned with the State Aid Temporary Framework to support the economy in the context of the COVID-19 outbreak adopted by the Commission. The Framework has now been amended to allow for guarantee schemes to remain in force until 30 June 2021. On 02.04.20 the scheme was amended to also include large enterprises; on 25.05.20 the scheme was prolonged until 31.12.20; and, on 31.07.20, the scheme was amended to include aid to micro enterprises in difficulty. COVID-19 measures continue to affect business operations, ESA has approved Norway’s proposal to extend the scheme so as to allow for guaranteed loans to be granted until 30.06.21. ESA has also approved that the loans can have maximum six years guarantee, rather than three. This will make repayment plans more manageable for businesses and can lower default risk. The scheme has a total budget of NOK 50 billion (EUR 4.66 billion). Visit the decision here.

The Commission published 25.11.20 its new Action Plan on Intellectual Property, which sets out five key areas for development over the coming years. The Action Plan proposes to upgrade a series of existing IP tools and make them fit for the digital age, including improving the supplementary protection certificates (SPC) for patented medicinal and plant protection products and modernising EU design protection. It aims at strengthening the protection of agricultural geographical indications (GIs) while considering the feasibility of a GI protection system for non-agricultural products at EU level. The Commission also launches an industry dialogue to address the impact of new technologies (such as AI and block chain) on the IP system. To ensure that companies have access to fast, effective and affordable protection tools and reduce the persisting fragmentation and complexity in the current system, the Action Plan calls for a rapid rollout of the unitary patent system to create a one-stop-shop for patent protection and enforcement across the EU. Visit the action plan here.

The EDPB adopted 10.11.20 recommendations on measures that supplement transfer tools to ensure compliance with the EEA level of protection of personal data, as well as recommendations on the European Essential Guarantees for surveillance measures. Both documents were adopted as a follow-up to the CJEU’s ‘Schrems II’ ruling. As a result of Schrems II, controllers relying on Standard Contractual Clauses (SCCs) are required to verify, on a case-by-case basis and, where appropriate, in collaboration with the recipient of the data in the third country, if the law of the third country ensures a level of protection of the personal data transferred that is essentially equivalent to that guaranteed in the EEA. The CJEU allowed exporters to add measures that are supplementary to the SCCs to ensure effective compliance with that level of protection where the safeguards contained in SCCs are not sufficient. The recommendations on the supplementary measures will be submitted to public consultation until 21.12.20. They will be applicable immediately following their publication. The consultation on Recommendations 01/2020 on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data can be visited here. The (final) Recommendations 02/2020 on the European Essential Guarantees for surveillance measures can be visited here.