European Union Regulatory Group BRUSSELS/EU PRACTICE

European Union (EU) regulation determines who has access to a market of almost 500 million consumers generating about 30% of worldwide economic output. EU regulation is often at the forefront of the debate on critical issues of concern to European and non-European interests.

They include reform of the financial system to improve Europe's ability to safeguard against systemic risk; agreement of ambitious goals and mechanisms to slow climate change and reduce carbon emissions; oversight and approval for novel foods, drugs and the chemicals used both in industry and the products we use daily; development of schemes that incentivize environmentally responsible handling of waste; market-based supervision of network industries (communications, energy, transport and other utilities) to promote competition and investment in infrastructure; and aid to individual companies, to economic sectors in crisis or to significantly underdeveloped regions in Europe.

EU regulation and the choices made by EU member countries in its detailed implementation and enforcement impact companies’ business models, investment decisions and conduct of business on a day-to-day basis. WilmerHale’s European Union Regulatory Group includes lawyers who can guide you through the rules that affect your business and advise on the complex interplay between EU regulation and national laws in EU member countries. It includes former high-ranking officials both at EU level and in national government, including Matthias Wissmann, a former German Federal Minister of Transport and currently President of the German Association of the Automotive Industry; Claus-Dieter Ehlermann, a former Director-General for Competition and Head of the European Commission’s Legal Service; Jacques Bourgeois, a former principal legal advisor at the European Commission; and Martin Seyfarth, a former Chief of Staff in the German Federal Ministry of Transport. We can also draw on the experience of Hanns-Eberhard Schleyer, a former Secretary-General of the German Confederation of Skilled Crafts and Small Businesses (ZDH) and of Robert M. Kimmitt, a former US Deputy Secretary of the Treasury and US Ambassador to Germany.

We have more than 50 specialists in key EU regulatory areas including Aviation and Logistics; Communications; Data Protection and Information Security; Energy and Climate Change; Environment, Waste and Chemicals; Financial Services; Food, Nutrition and Cosmetics; Life Sciences and Health Care; Public Procurement and Government Contracts; and State Aid. They have the depth of experience, respect of regulators and first-rate legal skills required to provide advice and representation of the highest caliber. They work closely with our colleagues in the US and Asia so that our services are sensitive to and leverage approaches taken in other jurisdictions.

We are able to offer integrated services on an issue or for a particular industry sector, from government relations/legislative advocacy at the beginning, to regulatory advice and counseling in the implementation phase, and finally, where needed, representation in litigation before national and European courts. While not every matter requires an integrated approach, the ability to offer the full range of services for a particular substantive issue is often important to clients. Last, we offer a range of services that cut across industry sectors, such as, internal and external regulatory investigations, and advice and representation in public procurement and subsidy/aid proceedings.

Representative examples of European regulatory projects recently handled by our European Union Regulatory Group include the following:

Aviation and Logistics

  • Represented a large Swiss hub airport before the European Commission and the German courts, including the German Supreme Court, in a dispute on the use of the airspace of Germany for approaches to and departures from the airport, including advice on negotiations on a bilateral treaty and on strategic options.
  • Completed a comprehensive study on European air space management and design, leading a consortium of legal, technical and policy experts. The recommendations of the study laid the ground for and are reflected in the EU regulatory framework for the creation of a single European sky.
  • Completed a detailed analysis of the EU rules concerning the unbundling of railway infrastructure management and railway operations for a major European railway company in the context of a series of infringement proceedings initiated by the European Commission against almost all EU Member States concerning the implementation of the EU’s First Railway Package.

Communications

  • Assisted a major European mobile telecommunications group against the initiative of Commissioner Viviane Reding concerning international roaming tariffs and advised the group on challenging the resulting regulation before the European Court of Justice.
  • Represent a major European telecommunications operator in landmark litigation before the European Court of Justice concerning an alleged margin squeeze in the local loop.

Data Protection and Information Security

  • Advise on compliance with European privacy rules in the context of advertising and marketing campaigns, lotteries and loyalty programmes, sales and purchases of customer lists and unsolicited commercial communications.
  • Counsel a global provider of outsourced human resources benefits management about compliance with European and international privacy and data transfer laws, including those applicable to sensitive (e.g., medical and financial) personal information; privacy and security obligations in connection with large-scale outsourcing; and security incident response and state and international breach notification obligations.
  • Drafted corporate codes of conduct that respect European and international data protection obligations and allow appropriate US Sarbanes-Oxley Act oversight, including anonymous whistle-blowing.

Energy and Climate Change

  • Provided comprehensive legal advice to a leading European energy company on the legality of the European Commission’s proposal for ownership unbundling under EU and German constitutional law.
  • Acted as regular strategic and policy counsel to a coalition of leading US and European clean technology companies concerning key aspects of global climate change negotiations, including comprehensive advice on their EU, US and global public policy strategy.
  • Represented a leading European electricity generator before the European Courts in an application for annulment of the European Commission's approval of the German national allocation plan for greenhouse gas emission trading certificates.

Environment, Waste and Chemicals

  • Established, advised and represented German food and beverage producers and German retailers in their ground-breaking and successful effort to create a German nationwide deposit system for the collection of approximately 16 billion one-way packages per year.
  • Represented a plastic materials producer before German administrative courts in litigation against Germany concerning the compatibility of departure routes from Frankfurt airport across the client's chemicals plant with the EU directive on the control of major accident hazards.
  • Advised numerous clients, in particular in the tech sector, on compliance with the WEEE and RoHS Directives and on how to structure systems for collection of electronic waste.

Financial Services

  • Advise a group of large hedge funds on the evolution of EU and national regulatory requirements applicable to alternative fund managers, including hedge funds and private equity funds, as well as the regulation of traditional asset management and investment funds, particularly related to marketing rules.
  • Counseled a leading credit card issuer on consumer credit rules and credit card regulation, from a consumer protection, financial services (SEPA) and competition law (interchange) perspective.

Food, Nutrition and Cosmetics

  • Assisted the Philippine carrageenan industry and the Philippine government in reversing a change in the EU standards for this food additive that would have shut it out of the market.
  • Advised a leading integrated meat processor on dealing with an animal health crisis, including development of a strategy to reintroduce imports of meat products from disease-free regions.

Life Sciences and Health Care

  • Advised a leading seed producer on various EU and German regulatory issues relating to GMOs and represented the company in litigation in Germany relating to allegedly dangerous GMO maize and relating to information claims brought by an NGO asking the client to disclose certain confidential data submitted in a GMO authorization procedure.
  • Represented a leading US medical device manufacturer in proceedings before the European Commission and Member States agencies with potential worldwide impact on standards for natural rubber latex used in surgical gloves.
  • Advised a major diversified consumer products company on a strategy to bring tooth whitening products to market and helped the company to navigate the requirements of the EU’s Cosmetics, Medical Devices and Medicinal Products Directives.

Public Procurement and Government Contracts

  • Represented several major pharmaceutical companies in a series of landmark public procurement litigation matters regarding the application of the procurement rules to German public health insurers and insurance funds (discount agreements for drugs).
  • Represented the successful bidder in public procurement litigation before the German Federal Cartel Office and the Higher Regional Court of Duesseldorf regarding the German truck toll system.

State Aid

  • Provided comprehensive support to a leading German retail group, and to its mail order subsidiary, including representation before the European Commission and in negotiations with the German government.
  • Represented an intervener in proceedings before the European Court of First Instance concerning the European Commission’s decision prohibiting preferential landing charges for Ryanair at Charleroi airport as illegal state aid.
  • Represented the European subsidiary of Nomura, the leading Japanese financial services group, in a series of (now settled) state aid complaints and litigation before the EU General Court against Czech aid granted to the banking sector.

European Union (EU) regulation determines who has access to a market of almost 500 million consumers generating about 30% of worldwide economic output. EU regulation is often at the forefront of the debate on critical issues of concern to European and non-European interests.

They include reform of the financial system to improve Europe's ability to safeguard against systemic risk; agreement of ambitious goals and mechanisms to slow climate change and reduce carbon emissions; oversight and approval for novel foods, drugs and the chemicals used both in industry and the products we use daily; development of schemes that incentivize environmentally responsible handling of waste; market-based supervision of network industries (communications, energy, transport and other utilities) to promote competition and investment in infrastructure; and aid to individual companies, to economic sectors in crisis or to significantly underdeveloped regions in Europe.

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Duvernoy, Christian

Christian Duvernoy

Partner-in-Charge, Brussels Office

+32 2 285 49 06 (t)

christian.duvernoy@wilmerhale.com

Louis, Frédéric

Frédéric Louis

Partner

+32 2 285 49 53 (t)

frederic.louis@wilmerhale.com

Mueller, Thomas

Thomas Mueller

Partner

+1 202 663 6766 (t)

thomas.mueller@wilmerhale.com

Ratliff, John

John Ratliff

Partner

+32 2 285 49 08 (t)

john.ratliff@wilmerhale.com

von Hehn, Paul A.

Paul A. von Hehn

Partner

+32 475 902 965 (m) +32 2 285 49 03 (t)

paul.vonhehn@wilmerhale.com

De Paepe, Frank

Frank De Paepe

Of Counsel

+32 2 285 49 30 (t)

frank.depaepe@wilmerhale.com

O'Daly, Cormac

Cormac O'Daly

Special Counsel

+44 (0)20 7872 1534 (t)

cormac.odaly@wilmerhale.com

van den Broek, Naboth

Naboth van den Broek

Special Counsel

+1 202 247 3267 (t)

naboth.vandenbroek@wilmerhale.com

Publications & News

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June 10, 2014

European Court of Justice Provides Guidance Regarding Potential Liability of Cartel Members in EU Member States for Sales by Non-Cartel Participants

Last week, the EU’s highest court, the European Court of Justice (ECJ), held that Member State laws may not categorically prohibit consumers from recovering from cartel members damages attributable to purchases from non-cartel participants that—acting independently—were able to charge inflated prices as a result of market-wide price effects from cartel behavior.

March 1, 2014

Major Events and Policy Issues in EU Competition Law, 2012-2013 (Parts 1 & 2)

An article by Partner John Ratliff, first published by Sweet & Maxwell in International Company and Commercial Law Review, Issues 3 & 4, 2014.

October 1, 2012

President Obama Issues Order Prohibiting Foreign Acquisition of US Company

On September 28, 2012, President Obama issued an order prohibiting a Chinese-owned company from acquiring four U.S. wind farm project companies. Although the U.S. government has not disclosed the national security issues raised by the transaction, the Treasury Department stated that the “wind farm sites are all within or in the vicinity of restricted air space at Naval Weapons Systems Training Facility Boardman in Oregon.”

May 11, 2012

Chambers Europe 2012 Recognizes WilmerHale Lawyers and Practices

April 10, 2012

WilmerHale Recognized as a Leading Firm in Europe by Legal 500 EMEA

April 2, 2012

UK Government Proposes Changes to Competition Laws, Including Criminal Cartel Offence

July 28, 2011

European and Transatlantic Export Controls: Europe's New Dual-Use Green Paper

June 23, 2011

Europe's New Strategy for the Future of IPRs in the Digital Age: Launch of a Legislative and Regulatory Debate

March 31, 2011

WilmerHale Recognized as a Leading Firm in Europe by Legal 500 EMEA 2011

February 24, 2011

Wholesale Energy Markets: European Commission Proposes Regulation to Prevent Insider Trading and Market Manipulation