EU/Competition: Banking and Finance

Newsletter 4/2020

Pursuant to Norwegian law, shareholders cannot own more than 20 to 25 percent of financial companies in Norway. According to ESA, this limit constitutes an unjustified restriction on establishment and on the free movement of capital. To this effect, ESA delivered a reasoned opinion 11.03.20, concluding that the Norwegian rules breach the EEA Agreement. Norway has two months to take the measures necessary to comply with this decision. A reasoned opinion is the second formal step of an infringement procedure. The third and last stage would be to bring the case to the EFTA Court, which will have the final say. Visit the reasoned opinion here.

Regulation 600/2014 on Markets in Financial Instruments (MiFIR) allows firms to freely choose where to trade and clear their products, which CCPs and trading venues need to facilitate. However, trading venues and CCPs may elect to temporary opt out from the access provisions for ETDs provided that certain conditions are met. ESA approved 20.03.20 a temporary opt-out of the access provisions for exchange-traded derivatives (ETDs). The approval was requested by the Norwegian Trading Venue Nasdaq Oslo ASA (Nasdaq). ESA assessed the information provided by Nasdaq as well as publicly available post-trade data and statistics, and has concluded that the temporary opt-out can be granted. It will apply for 30 months from the date of application of MiFIR in the EEA EFTA States, i.e. from 3 December 2019 to 3 June 2022. Visit the decision here.

The European Securities and Markets Authority (ESMA), the EU’s securities markets regulator, issued 27.03.20 a Statement on the implications of the COVID-19 pandemic on the deadlines for publishing financial reports which apply to listed issuers under the Transparency Directive. The Statement recommends National Competent Authorities to apply forbearance powers towards issuers who need to delay publication of financial reports beyond the statutory deadline. At the same time, the Statement underlines that issuers should keep their investors informed of the expected publication delay and that requirements under the Market Abuse Regulation still apply. Read more here.

The ESMA launched 03.10.19 a consultation on its draft technical advice to the Commission on how to specify the conditions under which the commercial terms are to be considered to be fair, reasonable, non-discriminatory and transparent (FRANDT) when providing CCP clearing services to clients in accordance with Article 4(3a) of EMIR. The consultation deadline is 02.12.19. Visit the consultation here.

The Norwegian government and the Norwegian Competition Authority have adopted several procedural positions related to the Covid-19 pandemic, the three key positions being: (i) Extension of all deadlines in merger cases with 15 working days – currently a proposal expected to enter into force very soon. (ii) The Norwegian Competition Authority has stated that they may revive and adopt price regulation pursuant to the Price Policy Act if necessary to prevent that someone takes advantage of the crisis by charging unreasonable prices for important goods and services. (iii) The NCA and ESA have subscribed to the ECN joint statement on enforcement of 23.03.20 stating inter alia: “The ECN understands that this extraordinary situation may trigger the need for companies to cooperate in order to ensure the supply and fair distribution of scarce products to all consumers. In the current circumstances, the ECN will not actively intervene against necessary and temporary measures put in place in order to avoid a shortage of supply. […] At the same time, it is of utmost importance to ensure that products considered essential to protect the health of consumers in the current situation (e.g. face masks and sanitising gel) remain available at competitive prices. The ECN will therefore not hesitate to take action against companies taking advantage of the current situation by cartelising or abusing their dominant position.”

The Commission released 01.04.20 new guidance for public buyers to help public authorities use the flexibility provided by the EEA’s public procurement framework to ensure rapid and efficient purchases. The possibilities range from considerably shortening the public procurement process to emergency procurement that is not subject to EEA procedural requirements and does not require the prior publication of tender notices. The guidance also recommends that public buyers consider alternative innovative solutions and ways of engaging with the market. Visit the guidance paper here.

The ESA will follow three main rules in assessing state aid: (i) Article 61(2)(b) EEA enables the EEA EFTA States to compensate specific companies or specific sectors (in the form of schemes) for the damage directly caused by exceptional occurrences, such as those caused by the Covid-19 outbreak. This includes measures to compensate companies in sectors that have been particularly hard hit (such as transport, tourism and hospitality) and measures to compensate organisers of cancelled events for damages suffered due to the outbreak. The Commission has made a template for notifications under Article 61(2)(b). (ii) In case of particularly severe economic situations, such as that resulting from the Covid-19 outbreak, the state aid rules allow the EEA EFTA States to grant support to remedy a serious disturbance to their economy. This is foreseen under Article 61(3)(b) EEA. The Commission has adopted a Temporary Framework to enable the EU Member States to further support the economy during the current outbreak. The Commission has also made a template for notification under the Temporary Framework. ESA will apply the conditions set out by the Commission in the Temporary Framework when assessing the compatibility under Article 61(3)(b) EEA. (iii) The Rescue Aid and Restructuring Guidelines, which are based on Article 61(3)(c) EEA, enable states to help companies cope with liquidity shortages and needing urgent rescue aid. In addition, companies that are not (yet) in difficulty can also receive such support, if they face acute liquidity needs due to exceptional and unforeseen circumstances such as the Covid-19 outbreak. Visit the ESA Covid-19 webpage (with links to the Commission’s framework) here.

ESA approved 26.03.20 a guarantee scheme in Norway to ensure access to liquidity for micro, small and medium-sized enterprises (SMEs). Through the scheme, the Norwegian authorities will provide public guarantees on investment and working capital loans granted to SMEs by credit institutions in order to meet immediate liquidity needs. The total amount of loans secured by the guarantees can be up to NOK 50 billion. The Norwegian authorities notified the scheme on 25.03.20. ESA approved the scheme taking into account the State Aid Temporary Framework to support the economy in the context of the COVID-19 outbreak adopted by the Commission on 19.03.20. Visit the decision here.

The European Data Protection Board adopted 19.03.20 a Covid-19 statement stressing that “…data protection rules (such as the GDPR) do not hinder measures taken in the fight against the coronavirus pandemic. The fight against communicable diseases is a valuable goal shared by all nations and therefore, should be supported in the best possible way. It is in the interest of humanity to curb the spread of diseases and to use modern techniques in the fight against scourges affecting great parts of the world. Even so, the EDPB would like to underline that, even in these exceptional times, the data controller and processor must ensure the protection of the personal data of the data subjects“. The statement touches on the following issues: (i) Lawfulness of processing, also in an employment context, and (ii) The use and lawfulness of the processing of telecom data, such as location data. Visit the statement here.

In a decision of 12.03.20 the NCA fined the VY Group NOK 7.5 million for providing incorrect information in a merger filing. The Vy Group and Fjord1 submitted a notification to the NCA in 2019 regarding the creation of a joint venture in the tourism industry and the acquisition of control of the tour operator Fjord Tours. In the notification, the VY Group stated that it could not get in a position to refuse competitors of Fjord Tours access to the Flåm Railway. During its investigation of the notified transaction, the NCA was made aware that the VY Group had given notice that it would terminate a contract regulating the Flåm Railway ticket sales. This information was relevant for the NCA’s assessment of whether the VY Group could get in a position to control ticket sales to the Flåm Railway.