EU/Competition: Transport and Shipping

Newsletter 4/2020

ESA is responsible for monitoring compliance in the EEA EFTA States with internal market law, hereto transport. The extraordinary circumstances of the COVID-19 outbreak have led to challenges for national transport authorities in all of the EEA States. One key challenge the transport sector is faced with is the renewal and verification of licences, or other certificates, for transport operators and professionals. What makes the situation difficult for national authorities in particular is that some EEA acts on transport do not contain a legal basis that allows national authorities – or ESA/European Commission – to approve exemptions or derogations from procedural or formality requirements in exceptional circumstances. On 27.03.20, the Director-General of DG MOVE published a note on Exceptional measures in transport to deal with COVID-19; Inability to comply with certain provision of EU legislation, on the DG MOVE website. In the note, the Commission recognises that following the COVID-19 outbreak, States may need to adopt measures which may not have a clear legal basis. The Commission accordingly suggests an approach to be followed by the States in taking those necessary measures. Firstly, national authorities must exercise their discretion in a manner which aims to avoid negative consequences to the key principles of EEA law and to transport safety. Secondly, those authorities should exercise caution as regards the temporal scope of the measures, with a preference for a time limit of three months where possible. In a statement of 15.04.20 ESA endorsed the approach suggested by the Commission. Visit the ESA statement (incl link to the Commission’s note) here.

The Commission adopted a decision 24.04.20 a Swedish State guarantee of up to approximately EUR 137 million on a revolving credit facility in favour of Scandinavian airline SAS to be in line with EU State aid rules. On 11.04.20 the Commission approved a State guarantee scheme for airlines notified by Sweden. However, the significant drop in travel demand in relation to the coronavirus outbreak and to the emergency measures necessary to limit its spread continues deteriorating the airlines’ financial situation. Sweden decided to complement the existing scheme by providing for compensation of the damage directly linked to the coronavirus outbreak to those airlines which are eligible for a State guarantee under the existing scheme, but which face difficulties in obtaining loans from credit institutions under the conditions prescribed in the approval decision of 11.04.2020. Accordingly, Sweden notified to the Commission an aid measure to partly compensate SAS for the damage suffered due to the cancellation or re-scheduling of its flights as a result of the imposition of travel restrictions linked to the coronavirus. The support will take the form of a State guarantee on a revolving credit facility in favour of SAS. If SAS will ultimately not be eligible to receive a State guarantee for the loan under the already approved guarantee scheme for airlines, it will receive it under the present individual aid measure. Denmark received approval of an identical scheme for SAS 15.04.20. Visit the Sweden case dossier here.

The Norwegian Parliament adopted 17.04.20 a temporary law introducing exceptions from procedural rules in the Competition Act due to the outbreak of Covid-19. The law extends some of the deadlines for the review of mergers with 15 working days. The Competition Authority’s deadlines in Section 20 of the Competition Act for informing parties that the Authority may intervene against a notified transaction, for issuing a statement of objections, and for adopting decisions confirming remedies proposed by the parties are extended. The deadlines in Section 20 a of the Competition Act for the handling of appeals before the Competition Tribunal are also extended. These extensions apply both to mergers the Competition Authority is currently examining as well as to future transactions that are notified during the period under which the temporary act is in force. The Act applies until 31.10.20.

The Commission released 01.04.20 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 of all necessary equipment. The possibilities range from considerably shortening the public procurement process to emergency procurement that is not subject to EU 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 here.

The Commission published 16.04.20 guidance on the development of new apps that support the fight against coronavirus in relation to data protection. The development of such apps and their take up by citizens can have a significant impact on the treatment of the virus and can play an important role in the strategy to lift containment measures, complementing other measures like increased testing capacities. This guidance follows the recent publication of the Commission Recommendation on a common EEA approach for the use of mobile applications and mobile data, and is accompanying an EEA toolbox on contact tracing apps, which is also published 16.04.20. Visit the guidance here and the accompanying recommendation here.

ESA approved 17.04.20 a temporary compensation scheme for companies in Norway covering substantial losses in turnover resulting from the COVID-19 outbreak and restrictive measures implemented. Companies of all sizes all over Norway are hit hard by the impact of the pandemic. Urgent action is needed to avoid a wave of bankruptcies and further job losses. The situation is acute for companies that are already not able to pay their fixed monthly costs. Many more are likely to face this problem in the coming weeks. The new compensation scheme will be generally applicable across most sectors of the Norwegian economy. It will benefit companies facing a sudden loss of turnover due to the economic effects of the outbreak. Visit the decision here.

ESA approved 27.04.20 a scheme that ensures access to liquidity for start-up facilitators and related organisations. The Norwegian start-up ecosystem consist of incubators, accelerators, co-working spaces and other facilitators. They are struggling financially in the wake of the COVID-19 pandemic. The sector is experiencing large revenue losses and is in danger of disappearing. This would weaken the opportunities for a whole generation of entrepreneurs in Norway. These undertakings can now receive grants under the approved scheme, which has a budget of NOK 50 million. Visit the decision here.