Talking Shop Summer 2021
Written By
Partner
UK
I'm the global head of our International Retail & Consumer sector group. As a partner in our international Commercial group in London, I work primarily with retail & consumer focussed businesses on their domestic and international growth and expansion strategies.
Welcome to the Summer 2021 edition of our Retail & Consumer news round-up
This newsletter focuses on key news and updates from the recent summer months for retail and consumer-facing businesses around the world. At the end of the newsletter, you can find details of our recent news and events, which we think might be of interest to you and your team.
At the end of the newsletter, you can find details of our recent news and events, which we think might be of interest to you and your team.
Please get in touch, or visit our webpage for more information about Bird & Bird's Retail & Consumer Group.
In this newsletter:
- Competition
- Consumer law
- Data Protection
- Energy & Infrastructure
- Fintech
- Intellectual Property
- Product Compliance
- News & Events
Competition
EU: The EU Commission publishes its draft VBER – a new blueprint for distribution in the EU
Following a comprehensive evaluation process which began in 2018, the EU Commission published on 9 July 2021 its long-awaited draft vertical agreement block exemption regulation (Draft VBER) and accompanying guidelines (Draft Guidelines).
The current VBER and Guidelines, which date from 2010, are widely considered to be a useful tool for self-assessment of vertical agreements. However, given the exponential growth of online sales and tectonic shifts in how consumers buy goods and services across the EU in the past decade, including the development of new players such as online marketplaces, the current regime is in dire need of an upgrade.
This article explores the proposed new regime in depth and highlights where businesses will most likely need to adjust their distribution agreements to comply with the new regime and/or benefit from new exemptions before it enters into force on 1 June 2022.
France: The FCA publishes its annual report and gives an outlook of its enforcing action
The French Competition Authority ("FCA") has recently published its annual report for 2020. The study provides a summary of 2020’s major cases and gives an overview of the FCA’s focus for the coming years. During this year marked by the COVID-19 crisis, the report highlights the FCA's sustained activity with a record amount of fines imposed and presents its priorities: merger control, sustainable development and the digital sector.
Italy: AGCM dismisses allegations against the “formula club system” in the Italian patented seedless grapes market
On 25 May 2021, the Italian Antitrust Authority ("AGCM") issued a landmark judgment in a proceeding for unfair commercial practices in the distribution and selling of patented seedless grapes in Italy. The proceeding represents one of the few of its kind, not only for the close interlink between IP and competition law, but also because it was initiated under Article 62 of Italian Decree Law n. 1/2012, which gives the competence to the AGCM to investigate commercial practices specifically related to the selling and distribution of agricultural and agri-food products. In the case at stake, the AGCM concluded the investigation by stating the partial inapplicability of the provision of Decree Law n. 1 /2012.
UK: The UK Government consults on the new digital competition regime
Further to the UK Government’s plans, announced at the end of 2020, to set up a new digital competition regime (summarised in our earlier article “Big Tech” under pressure - new Rules for Digital Platforms in the EU and UK), a consultation was published in July 2021 on the final design of the new “strategic market status” pro-competition regime for digital markets and the establishment of the new Digital Markets Unit.
The Consultation builds on the draft proposals set out by the Digital Task Force at the end of last year and seeks view on the core components of the new digital regime
Consumer law
UK: A fine time for consumer law compliance
Kwasi Kwarteng, Great Britain’s Business Secretary, has announced an upcoming wide-ranging set of reforms that aim to strengthen and streamline the enforcement of consumer law. The most critical change proposed is in relation to the Competition and Markets Authority’s (the "CMA") powers. Under the new proposals, the CMA will have new powers allowing it to fine traders up to 10% of their global turnover for infringements of consumer law, plus civil fines for traders who refuse or give misleading information to enforcers. Equally importantly, the CMA can levy these fines itself, rather than having to bring an action in the courts.
The CMA’s enhanced powers are likely to lead to a higher number of investigations and fines. Businesses selling to, or interacting with, consumers in Great Britain will need to ensure they comply in all material respects with consumer law, and compliance is likely to become a boardroom issue in a similar way that data protection compliance was when the GDPR came into effect in 2018.
Data Protection
China: The gloves are off! China’s Personal Information Protection Law was passed and will come into effect on 1 November 2021
On August 20, 2021, the long-awaited Personal Information Protection Law of the People’s Republic of China (“PIPL”) was officially adopted by the National People’s Congress Standing Committee after its third reading. The PIPL will take effect on 1 November 2021, leaving organisations less than three months to prepare for this first piece of comprehensive and dedicated personal information protection law in China.
UK: Information Commissioner consults on data transfers – including approach to EU Standard Contractual Clauses
On 11th August 2021, the United Kingdom Information Commissioner launched a consultation on data transfers. The consultation is relevant to anyone who transfers personal data from the UK, or who provides services to UK organisations. The consultation asks whether it would be helpful for the Information Commissioner to approve an addendum, allowing the EU Standard Contractual Clauses to be used for transfers of personal data from the UK.
Even if organisations have no comments on the Commissioner’s other points, this point alone is important enough to warrant a response to the consultation. In addition the consultation proposes: 1) that the Information Commissioner will terminate the (current, temporary) approval of the 2001, 2004 and 2010 Standard Contractual Clauses; 2) a new, UK specific, International Data Transfer Agreement; 3) an accompanying Transfer Risk Assessment; and 4) changes to existing UK guidance on data transfers. The deadline for responding is 5 p.m. (local time) on 7th October 2021.
Energy & Infrastructure
ASEAN: Onsite PPA - perspectives from key ASEAN economies
With climate change set to adversely impact assets and economies in ASEAN, renewable energy is rising to the fore as a key solution to providing affordable electricity for powering economic growth. While renewable energy infrastructure projects require upfront capital investments to build, they can for most parts be operated at very low cost and are thus becoming increasingly attractive to a broad number of end-users.
There are many moving pieces affecting the adoption of clean energy projects in ASEAN; however, all independent power projects feature onsite or offsite power purchase agreements (“PPAs”). This article aims to examine the traditional onsite power purchase agreement models prevalent in various ASEAN jurisdictions, in particular for use with regards to solar photovoltaic (“PV”) systems.
Fintech
Global: Non-fungible Tokens - what’s all the fuss?
Non-fungible tokens ("NFTs") have been around for many years but have recently gained huge traction, taking a variety of different forms such as digital kittens (CryptoKitties), sports highlights (NBA Top Shot), music album downloads (Kings of Leon) and digital art auctioned by Christies. More recently, Sir Tim Berners-Lee sold an NFT that included the original source code for the world wide web.
NFTs represent a new way for brands to directly engage with consumers in the digital age; a way for brands to create a sense of scarcity and therefore value around their digital collectibles, including photos, videos and audio files. They potentially represent the next (digital) generation of the Panini trading cards traded by children in school yards in the 80s and 90s. Also, because of the way NFTs are able to tokenise, store and hold rights in digital or physical assets, they are likely to have a wide application to sectors such as financial services. But what are they, what do they represent and what are the legal and commercial issues to consider?
Intellectual Property
China: Countermeasures for knockoffs sold on e-commerce platforms
The sale of products has in recent years gradually moved to online platforms from physical stores. Products ordered by customers online are delivered directly to customers. As a result, it is hard to identify the sellers of infringing products or the locations where infringing products are manufactured or stored, leading to difficulty in conducting administrative investigation and punishment.
The trend of manufacturing and selling infringing products targeted only at export markets (overseas customers) is increasing in intensity in the mainland of China. Making intellectual property complaints to e-commerce platforms is a low cost means of solving infringement-related matters, at present mainly trademark infringement. This article explores intellectual property complaints regarding the removal of the increasing number of products that infringe design patents from e-commerce platforms and relevant points for attention.
UK: Future regime for exhaustion of IP rights - IPO consultation
The Intellectual Property Office is consulting on the UK's future exhaustion regime for intellectual property rights. IP rights are exhausted where the goods are put on the market by, or with the consent of, the rights holder. The rights holder cannot rely on the IP rights protecting the goods in order to prevent the further distribution or resale of those goods.
Under the system adopted by the EU, once a rights holder has, or has authorised a third party to, put a product on the market anywhere in the EEA, the rights holder cannot assert its national rights in any one of the countries within the EEA in order to prevent those goods from being imported or resold in other parts of the EEA. However, this no longer applies to the UK now that it has left the UK.
Product compliance
EU: Pass the mustard - incorrect advice found in a newspaper regarding a horseradish herbal remedy is not a "defective product" under the EU Product Liability Directive
Case: VI v KRONE-Verlag Gesellschaft mbH and Co KG (Case C-65/20) ECLI:EU:C:2021:471
On 10 June 2021, the Court of Justice of the EU (CJEU), handed down its judgment following a reference from an Austrian court, deciding that inaccurate health advice in a hardcopy newspaper which resulted in injury to a reader was not a defective product under the Product Liability Directive (85/374/EEC) ("PLD").
The PLD contains a strict liability regime for persons that suffer personal injury or damage to non-commercial property as a result of defective products. The PLD is implemented into English law by the Consumer Protection Act 1987 ("CPA") and the CPA continues to apply in respect of the UK’s strict liability regime (even though the UK has now left the EU). The CJEU’s decision may provide a useful indication of how an English court will interpret the meaning of a ‘product’ under the CPA should a similar claim arise here.
News & Events
Event: Green, sustainable and eco advertising in Germany – legal framework, do’s and don’ts
We would like to invite you to a series of webinars we will be hosting on Green Advertising and Sustainability.
The webinars will be relevant to international businesses located across the globe, with each exploring one particular jurisdiction. We will look at the key issues multi-national businesses will need to consider when advertising in that jurisdiction, including national legislation and guidance regarding green and sustainable advertising.
The first session will focus on Green Advertising in Germany
28 September 2021, 17:00 - 18:00 CEST
Green advertising in Germany can be very successful, but it also comes under legal scrutiny. Competitors and NGOs are regularly checking green, eco, carbon and sustainability claims on the market. If the factual foundation of a claim is found to be lacking, cease and desist letters often follow. If your multi-national company is advertising or plans to advertise with green claims in Germany (and the EU), we would like to invite you to our webinar (held in the English language) on the Do’s and Don’ts of Green Advertising in Germany.
Event: The UK Online Safety Bill - a pre-flight checklist
27 September 2021, 17:00 - 18:00 BST
Since publication of the UK government’s long expected draft Online Safety Bill in May this year, discussion of the proposed new regulatory regime has intensified. 24,000 online businesses of all sizes, from large social media platforms to specialist discussion forums, as well as search engines, are estimated to be in scope. Ofcom will regulate this area and be given very significant enforcement powers including the ability to order fines of up to £18 million or 10% of annual global turnover, whichever is higher. The proposed Bill has broad territorial reach, not limited to online services established in the UK.
Our panel discussion will cover the issues likely to be on the radar at the pre-legislative scrutiny stage, look at where the government may end up in the most hotly debated areas, and analyse what an eventual Bill may mean for those in scope.
Our international Franchising team contributes to the Mondaq Comparative Guide
Partner Mark Abell is the contributing editor of Mondaq’s Comparative Guide to Franchising, which launched on 25 August 2021. The Guide provides an overview of some of the key points of law and practice, allowing users to compare regulatory environments and laws across multiple jurisdictions.
As well as editing the Guide, members of our international Franchising team have also authored the chapters on the UK, UAE, Czech Republic, Poland and Slovakia.
When using the Guide, relevant regions can be selected and the content refined to show the exact franchising subjects on which you are seeking clarity. You will find a detailed analysis on subjects such as franchising models, disclosure and due diligence, operational standards, disputes, and trends and predictions, among others, provided by internationally recognised experts.
Italian Corporate team advises Satispay on the acquisition of AdvisorEat
Founded in 2013, Satispay is a fintech scale-up that has developed the well-known payments and money transfer app of the same name. In its most recent funding round, the company raised €93 million from the likes of Tencent, Square, LGT Lightstone, and TIM Ventures.
AdvisorEat is an Italian start-up whose founders created a platform allowing its users - professionals from large companies in the legal and consulting world - to select affiliated restaurants and to collect points to be converted into gift cards, vouchers, or charitable donations.
The Corporate team, led by partner Stefano Silvestri with Counsel Calogero Porrello and associates Sara Calamitosi and Davide Biasotti, managed the transactional aspects of the deal, with support from the firm’s IP, Technology, and Data experts.
The acquisition of AdvisorEat, the first ever for Satispay, signals its market entry in the field of corporate welfare. The company aims to offer a new range of solutions that can respond to the increasing evolution of corporate policies in terms of care for their employees.
Bird & Bird strengthens its Corporate practice in London with the appointment of Nick O’Donnell as partner
With over 20 years’ experience, Nick specialises in cross-border M&A (both public and private), equity capital markets and ESG matters. He has a broad range of experience across the technology, healthcare, industrials, energy, retail, media and financial services sectors.
At Bird & Bird, Nick’s focus will be to continue to work closely with corporate clients, particularly listed companies. He will also collaborate with the sector groups across the firm and lead on executing cross-border deals with a focus on the UK, Europe and, having previously worked in New York, the US. He also has an interest in transactions from, and into, the Gulf and spent two years based in Abu Dhabi. He has spent time on secondment with Morgan Stanley and Goldman Sachs.
Nick is highly regarded by IFLR (2021) and has had various Legal 500 recognitions. He is also an Accritas "Star Lawyer" in their 2021 rankings and received the Lexology (Client Choice) Award for UK ECM in 2019.
In recent years, he has acted as a spokesperson on the London market and is regularly interviewed on CNBC and quoted in publications including The Economist, The Daily Telegraph and The Financial Times.
Bird & Bird appoints Technology, Media and Telecommunications specialist James Gong as a Corporate partner in Beijing
James has extensive experience advising on cross-border mergers and acquisitions, and general corporate and foreign direct investments as well as commercial, regulatory and compliance issues. Over the past ten years, James has represented clients in a broad range of industries and specialises in technology, media, telecommunications, cyber security and data protection.
His appointment is an important part of the international Corporate and Tech & Comms team’s strategy at Bird & Bird: to build a market-leading Corporate practice with M&A and big data capabilities in the TMT sector across the Asia-Pacific region. James will also be working closely with the international Data Protection group, focusing on providing compliance services for international network clients ahead of the enactment of the new Chinese cyber and data protection laws.
