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Newsletter #15 – November 2022

EU LAW & DIGITAL ECONOMY

We are pleased to share with you our Newsletter of November 2022:

COMPETITION LAW 

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New warranty rules in Belgium as of 1 June 2022

With the Act of 20 March 2022 (Act amending the provisions of the former Civil Code relating to consumer sales, inserting a new Title VIbis in Book II of the former Civil Code and amending the Code of Economic Law), Belgium has transposed two European Directives into Belgian law:

–    Directive (EU) 2019/770 of 20 May 2019 on certain aspects of contracts for the provision of digital content and services, and
–    Directive (EU) 2019/771 of 20 May 2019 on certain aspects concerning contracts for the sale of goods.

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A change of company share ownership may result in the impossibility of continuing the execution of an “in-house” contract

On 12 May 2022, the Court of Justice of the European Union further clarified the scope of the in-house exemption provided for in Article 12 of Directive 2014/24/EU (case C-719/20).

Under Article 12(3) of Directive 2014/24, a public contract may be awarded to a legal person without applying the Directive (i.e., without a public procurement procedure) provided that (i) the contracting authority exercises jointly with other contracting authorities a control over that legal person which is similar to that which they exercise over their own departments; (ii) more than 80 % of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or by other legal persons controlled by the same contracting authorities; and (iii) subject to certain exceptions, there is no direct private capital participation in the controlled legal person. Read more…

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National legislation may not impose on the agent of a group of economic operators that it must fulfil the majority of the requirements and provide the majority of the services in a public contract

In the case C-642/20 that led to the ruling of 28 April 2022, a public tender was awarded to a temporary association of undertakings. The Tribunale administrative regionale per la Sicilia annulled this award based on Italian legislation which provides that in case of a group of economic operators where recourse has been had to reliance on the capacities of other entities, the agent must in any event fulfil the majority of the requirements and provide the majority of the services. Read more…

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The Court of Justice confirms the compatibility of Article 17 of the DSM Directive, which de facto requires platforms to filter online content, with freedom of expression and information

On 26 April 2022, the Court of Justice confirmed the compatibility of Article 17 of Directive 2019/790 on copyright and related rights in the Digital Single Market (“DSM Directive”) with freedom of expression and information by dismissing the action for annulment brought by Poland (case C-401/19).

As a reminder, Article 17(1) of the DSM Directive provides that online content-sharing service providers such as YouTube perform an “act of communication to the public” within the meaning of Article 3(1) of Directive 2001/29 when they provide access to copyright-protected works uploaded by their users. As a result, they must obtain an authorisation from the rightsholders for that purpose, for instance by concluding a licensing agreement. Read more…

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The Court of Justice rules on the application of the non bis in idem principle in the event of a duplication of proceedings and penalties under sectoral rules and competition law

On 22 March 2022, the Grand Chamber of the Court of Justice of the European Union delivered its answers to the two preliminary questions referred to it by the Brussels Court of Appeal on the interpretation of the non bis in idem principle (case C-117/20). In its questions, the referring court asked, in essence, whether this principle precludes a national competition authority to prosecute and sanction an undertaking where, on the same facts, that undertaking has already been the subject of a final decision following proceedings relating to an infringement of sectoral rules. Read more…

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Implementation of the ECN+ Directive in Belgium

Following a parliamentary urgency procedure, the Act implementing Directive (EU) 2019/1 (the ECN+ Directive) into Belgian legislation was enshrined on 28 February 2022 and entered into force on 17 March 2022. The ECN+ Directive provides national competition authorities with additional tools to apply competition law more effectively and to ensure the proper functioning of the internal market.

The new Act entails several important changes in Belgian competition law. Read more…

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