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A popular way for contracting authorities to avoid a time-consuming and costly award procedure is a so-called direct award. In such a procedure, contracting authorities decide in favour of a supplier without publishing a tender. If a direct award is unlawful, affected competitors often lack legal protection in the absence of timely knowledge of an infringement. What many do not know is that, even if the deadline for a review procedure under public procurement law has expired, there are still opportunities to take action against illegal direct awards.

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Since 12 October 2023, the notification obligations under the EU’s new Foreign Subsidies Regulation (FSR) have been in force. Meanwhile, a number of cases were notified to the European Commission (Commission) and practical experience gathered. The Commission has recently announced its first in-depth investigation concerning a Chinese railway company. This case shows that the Commission is determined to use its new powers under the FSR. This briefing summarizes once again companies' obligations pursuant to the FSR and provides some practical guidance from the first months of application.

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As announced mid-January, BLOMSTEIN is publishing a series of briefings introducing into European and German legal defence matters. In our last briefing, we discussed the relevance of merger control in the European consolidation of the defense industry.

The Carbon Border Adjustment Mechanism (CBAM) represents a pivotal shift in the European Union's approach to mitigating climate change by imposing a carbon price on imports of certain goods from outside the EU. It aims to prevent carbon leakage by ensuring that ambitious climate efforts within the EU do not lead to the relocation of carbon-intensive production to countries with less stringent emissions standards. The CBAM is designed to complement the EU's Emissions Trading System (ETS) by applying a similar carbon cost to imports, thus leveling the playing field for EU producers.

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Lobbying is an everyday reality in politics and constitutes an integral part of democracy. However, in the recent past, several lobbying scandals have revealed deficits in the transparency of lobbying – also in Germany. In particular, lobbying was often not subject to public scrutiny. To counteract the deficits, the German Bundestag has passed the German Lobbying Register Act in 2021. It obliges lobbyists to sign up in a Lobbying Register and publish certain information in connection with their lobbying activities. Recently, the German Bundestag has amended the Act, inter alia by extending the scope of the obligation to register. The changes will come into force on 1 March 2024. They constitute additional obligations both for companies which are already registered in the Lobbying Register as well as new obligations to register for companies which do not have a Lobbying Register entry yet. As violations of obligations under the Lobbying Register Act can be sanctioned with harsh fines up to EUR 50.000 and there is also a risk of considerable reputational damage, it is crucial for companies to ensure compliance with the new rules.

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On December 12, 2023, an agreement was reached in the European Parliament on a draft of the EU Critical Raw Materials Act (CRMA), paving the way for its timely adoption. This raises the threat of further regulatory obligations for companies that produce with critical raw materials.

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With the recent spate of inquiries into generative AI investments, there is no doubt that the spotlight of EU competition authorities is on one topic: generative AI. The authorities' determination for greater oversight of AI is backed by the EU's ambitious AI Act and the establishment of the EU Artificial Intelligence Office. But that's not all: with the current Call for Contribution 'Competition in Virtual Worlds and Generative AI', open until 11 March 2024, the European Commission is calling on regulatory experts to gather views on AI from a competition perspective. In other words, the EU Commission is gearing up for competition regulation of AI at EU level.

This briefing provides an overview of current antitrust topics from EU competition authorities' lens. Together with recent EU regulatory developments, these should be anticipated by generative AI model providers and their investors or partners alike.

This briefing is the first in a series of AI briefings, spotlighting current AI-related hot topics in competition law, public procurement law, trade/foreign direct investments (FDI), and ESG.

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Almost under the radar, the European Court of Justice (ECJ) performed a U-turn in European case law with its ruling of 30 November 2023 (C-787/22 P) on access to OLAF files. In the appeal judgement, the Court confirmed that “persons concerned” should also have the opportunity to access documents in relation to an OLAF investigation.

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BLOMSTEIN has kicked-off a series of briefings on current legal topics in the defence sector. In our last briefing, we discussed our take on how to get direct awards. Today, we focus on the recent merger clearance of the German Federal Cartel Office (FCO) for the acquisition of ESG Elektroniksystem- und Logistik-GmbH by Hensoldt Holding Germany GmbH. This merger clearance underscores a pivotal moment in defence industry consolidation. The merger is set against a backdrop of geopolitical shifts and heightened defence investment. ESG's expertise as a system integrator focused on the development, integration, and support of third-party electronic systems complements Hensoldt, a leading manufacturer of defence electronics, including radars and optoelectronic systems. This briefing explores the antitrust law implications and the unique characteristics of the defence market, particularly in the context of the current geopolitical climate marked by the urgency of strengthening defence capabilities through innovation and investment and the rapid digitalization of the battlefield.

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As part of its rollout of the European Economic Security Strategy adopted last year (on which we reported in a previous briefing), the European Commission (Commission) has published a package of planned initiatives aiming to enhance the EU’s economic security. The official communication highlights how the Commission views the package as a comprehensive approach to strengthen the EU’s response capacity to various risks linked to FDI into the EU, outbound investments as well research security and dual-use goods. Accordingly, the unveiled initiatives address the following areas.

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As announced mid-January, BLOMSTEIN is publishing a series of briefings introducing into European and German legal defence matters. In our last briefing, we discussed our take on hot legal topics for the defence industry for the year 2024.

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