McGuireWoods LLP | 1 CONFIDENTIAL

EU Competition and Procurement Law: Opportunities and Constraints

McGuireWoods LLP | 2 CONFIDENTIAL

Opportunity: obtaining “State aid” and EU funds

"State aid" basically banned, but many exceptions:• Existing general pre-approvals including for R&D&I, technical

feasibility studies etc.• Existing pre-approvals for national schemes such as to support

low carbon technology (UK), organic farming (Germany) etc.• Individual pre-approvals

Lots of “EU” money available, such as for R&D, Eco-Innovation, Intelligent Energy Europe etc.

Also Structural and Cohesion Funds (via Member States)

Also the European Investment Bank

McGuireWoods LLP | 3 CONFIDENTIAL

Opportunity: obtaining “State aid” and EUfunds

• Identify the sector(s)

• Identify the type of aid/support

• Very wide range of aid – national and EU-level regimes

• Small sums to billions – small companies to banks/the car industry

• Some aid may not be illegal

McGuireWoods LLP | 4 CONFIDENTIAL

Opportunity: EU public tenders

• U.S. companies can rely on the WTO GPA• Their EU subsidiaries can directly rely on the EU public

procurement rules • Real remedies are available• New EU public procurement rules are coming• TTIP; possible further opening up

Public purchasing corresponds to 19% of EU GDP

Understand the process and your rights

McGuireWoods LLP | 5 CONFIDENTIAL

Other EU competition law issues

McGuireWoods LLP | 6 CONFIDENTIAL

Constraints: control of acquisitions, JVs and cooperative agreements

• EU and national levels

• Merger control (HSR equivalent):

- Compulsory

- Wide scope

- Sanctions

• If not merger control, general competition law

Needs to be taken seriously; impact on transaction costs and timing

McGuireWoods LLP | 7 CONFIDENTIAL

Constraints: the general structure in the EU

• Some surprising features about distribution

• Some surprising cartel issues- information exchange = cartel- one meeting or call may be

enough

• parent liability

• Additional dominance abuses

• Compliance programme issues- substantive differences- hotlines and data protection- audits and data protection

It’s not the same as here

McGuireWoods LLP | 8 CONFIDENTIAL

Opportunities: the general structure in the EU

Freedom to operate…

• Agency• Block exemptions• Discrimination = ok

(usually)• De minimis rules

Some additional ways to attack…

• Distribution issues• Cartel issues• Additional dominance

abuses (the law as a sword)• Sector inquiries

McGuireWoods LLP | 9 CONFIDENTIAL

Opportunity: making complaints and litigating

Competition law can be a weapon:

UK example: “Following numerous complaints, the OFT opened a formal investigation into Amazon’s price parity policy in October 2012”

EC example: “The [EC] has opened a formal investigation to assess whether The MathWorks Inc….has distorted competition in the market for the design of commercial control systems…[This] follows a complaint…”

Complain at EU and/or national level

Litigate at national level

McGuireWoods LLP | 10 CONFIDENTIAL

EU Competition and Procurement Law: Opportunities and Constraints