Tag Archives: Ryan D. Junck

EU Court Upholds Commission’s Power To Demand Data Held by Foreign Companies

by Bill Batchelor, Ryan D. Junck, David A. Simon, Nicola Kerr-Shaw, Bora P. Rawcliffe, and Margot Seve

Photos of the authors

Top left to right: Bill Batchelor, Ryan D. Junck, and David A. Simon. Bottom left to right: Nicola Kerr-Shaw, Bora P. Rawcliffe, and Margot Seve (Photos courtesy of authors)

Summary

In Nuctech Warsaw (T-284/24), the EU Court of Justice held that EU subsidiaries can lawfully be required to provide access to email accounts and data held by their overseas parent company. The ruling involved the following framing:

  • Broad reach of EU extraterritorial investigative powers: The order interprets the European Commission’s (EC’s) investigative powers broadly. EU law applies to conduct with significant effects in the EU, even if the conduct occurs outside the EU. Consequently, the EC may request information from non-EU companies to assess potential EU law violations.
  • Implications for other EU enforcement regimes: The investigation was carried out under the EU Foreign Subsidies Regulation (FSR), but the ruling has implications for the EC’s powers under general antitrust rules and other regulations such as the Digital Markets Act or the Digital Services Act. The judgment follows divergent rulings in the UK that limited the extraterritorial reach of UK regulators’ enforcement powers in fraud and antitrust cases. (See our February 2021 alert “English Supreme Court Limits Serious Fraud Office’s Extraterritorial Reach” for more details.)
  • Siloing access to data within a corporate organization: The ruling held that there was no evidence local subsidiaries could not access China-held data, or that compliance with the EC’s inspection decision would compel the applicants and the group to infringe Chinese law, including criminal law. Therefore, companies should consider:
    • If their IT environment and procedures can be siloed to enable the company to demonstrate that accessing parent company data from the EU is not technically feasible without cooperation from the non-EU entities.
    • Whether law and regulation applicable to a company would prevent it from sharing this data with an EU regulator. If so, this should be well-documented in advance, potentially with external legal counsel validation, so that any refusal to comply with a request for data could be quickly substantiated with specific reference to other applicable laws.

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UK Steps Up Enforcement Efforts with New Global Anti-Corruption Sanctions Regime (Part II of II)

by Ryan D. Junck, Elizabeth Robertson, and Zahra Mashhood

This is Part II of a two-part post. This Part discusses practical ramifications of the UK’s new Global Anti-Corruption Sanctions Regulations. For Part I, discussing technical aspects of the regulations, click here.

The new Global Anti-Corruption Sanctions Regime is a further step by the UK on its path to forge its own post-Brexit sanctions policy. It mirrors the approach taken by its international partners, the US and Canada, both of which already have systems in place that impose sanctions on people and entities based on allegations of corruption. For example, under the new rules, the UK sanctioned current Guatemalan official Felipe Alejos Lorenzana on the same day the US did. Furthermore, a large number of the individuals on the UK’s list have already been sanctioned by the US.

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UK Steps Up Enforcement Efforts with New Global Anti-Corruption Sanctions Regime (Part I of II)

by Ryan D. Junck, Elizabeth Robertson, and Zahra Mashhood

This is Part I of a two-part post. This Part discusses the technical aspects of the UK’s new Global Anti-Corruption Sanctions Regulations. For Part II, discussing practical ramifications of the regulations, click here.

On 27 April 2021, the UK implemented its new Global Anti-Corruption Sanctions Regime, enhancing its existing Global Human Rights Sanctions Regime, which came into force in July 2020. The new Global Anti-Corruption Sanctions Regulations 2021 (the Regulations) enable the UK Foreign Secretary to impose asset freezes and travel bans on designated individuals and entities linked to certain corrupt activities, and criminalises the breach of those sanctions within the UK, as well as any breach by any UK individual or UK entity wherever located. That includes UK subsidiaries of foreign companies.

The purpose of the regime is to prevent and combat serious governmental corruption, by stopping those involved from entering and channelling money through the UK. The system is broadly similar to those in place in the US and Canada. The regime has been implemented under the Sanctions and Anti-Money Laundering Act 2018 (SAMLA), which established the legal framework for the UK to introduce new sanctions regimes post-Brexit.

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Comparing French and U.K. Guidance on Corporate Cooperation to U.S. Practices

by Keith D. Krakaur, Ryan D. Junck, Gary DiBianco, Elizabeth Robertson, Christopher Bolyai, Margot Sève, Vanessa K. McGoldrick, and Molly Brien

On June 27, 2019, the French Financial Prosecutor (“PNF”) and the French Anticorruption Agency (“AFA”) published joint guidelines regarding the legal framework governing French DPAs (“CJIPs”) that address the conditions necessary for companies to be considered for a CJIP, including expectations for cooperation during an investigation (“French CJIP Guidance”).[1] On August 6, 2019, the U.K. Serious Fraud Office (“SFO”) published Corporate Co-operation Guidance (“U.K. Co-operation Guidance”) as part of the SFO Operational Handbook, detailing the steps companies are expected to undertake to obtain cooperation credit.

Both sets of guidance demonstrate further alignment of those jurisdictions’ deferred prosecution agreement (“DPA”) regimes with long-standing practices in the U.S., albeit with some notable areas of divergence. Continue reading →