ANTITRUST AND COMPETITION
The European Commission Reviews Its Informal Guidance Notice
On 24 May 2022, the European Commission (Commission) launched a public consultation to gather feedback from interested parties on the draft revised Informal Guidance Notice (Draft Notice).
The Informal Guidance Notice identifies the cases and criteria under which the Commission may provide—in the form of a letter —informal guidance on the application of EU competition rules to companies. The Draft Notice has been adopted in 2004 together with Regulation No. 1/2003 on the implementation of the competition rules (Regulation No. 1/2003).
Regulation No. 1/2003 abolished the Commission’s exemption monopoly and introduced the legal exception regime pursuant to which companies self-assess their conduct in accordance with EU competition rules. In fact, companies no longer need to notify the Commission in advance with regard to obtaining an exemption decision. Companies and their counsel need to self-assess the compatibility of their agreements with EU competition law, which are deemed to be legally valid and enforceable without an authorization by the Commission. As a result, Regulation No. 1/2003 critically changed the focus of the Commission’s enforcement action, thereby allowing it to pro-actively investigate serious infringements and impose on businesses the self-assessment to EU competition rules.
Regulation No. 1/2003 provides that “where cases give rise to genuine uncertainty because they present novel or unresolved questions for the application of these rules, individual undertakings may wish to seek informal guidance from the Commission.”
Pursuant to the Informal Guidance Notice, the Commission can provide guidance in the following cases: (i) absence of any clarification already existing in the EU legal framework; (ii) usefulness of the clarification; and (iii) the guidance may be issued on the basis of the information provided by the company (i.e., no further fact-finding needed).
Until now, the Commission has rarely provided guidance to the companies under the Informal Guidance Notice. The need to refine and update the current criteria prompted the Commission to launch this public consultation with the objective of making easier the informal feedback under the Informal Guidance Notice where sought by businesses.
Pursuant to the Draft Notice, the Commission proposes to issue guidance if a prima facie assessment of the facts and legal considerations of the conduct suggest that there are valid reasons to provide clarifications, if: (i) the request for guidance concerns novel or unresolved questions; and (ii) there is a public interest in providing guidance.
The consultation ended on 21 June 2022. The Commission will use the contributions received to assess and amend the Draft Notice by the end of 2022. The Commission’s revised Informal Guidance Notice could potentially provide further predictability by allowing companies to obtain useful feedback from the Commission in case of doubts on the implementation of EU competition rules.
Commission Adopts New Vertical Block Exemption Regulation and Vertical Guidelines
The new Vertical Block Exemption Regulation (VBER) and Vertical Guidelines provide simpler, clearer, up-to-date rules and guidance to help businesses to self-assess compliance of their vertical agreements with article 101 of the Treaty on the Functioning of the European Union (TFEU) in a business environment reshaped by growth of online sales and the emergence of new market players such as online platforms.
The revised rules exempt from the prohibition set forth by Article 101(1) of the TFEU agreements between companies that are active at different levels of the production or distribution chain, subject to certain conditions, when both the supplier and the distributor have market shares which do not exceed 30%. The rules thus provide for a safe harbour where certain agreements are block exempted.
The new VBER has maintained several key provisions from the previous VBER, such as the 30% market share threshold for benefitting from the safe harbour, as well as most of the hard-core restrictions. Regarding the excluded restrictions, the new VBER extended the exemption to noncompete obligations that are tacitly renewable beyond a period of five years, provided that the buyer can effectively renegotiate or terminate the vertical agreement.
The new VBER narrows the scope of certain safe harbours regarding dual distribution, i.e., where a supplier is competing with its independent distributors by selling its goods or services through independent distributors but also directly to end customers. In practice, the new VBER extends the dual distribution exemption to wholesalers and importers, but excludes the so-called “hybrid” platforms. The new rules also narrow the scope of certain safe harbours as regards the so-called parity obligations, which require a company to offer its contracting party the same or better conditions as on other platforms, or any other sales channel such as websites.
However, the revised rules also introduce some flexibility as regards certain restrictions for active sales, as well as certain practices relating to online sales. This includes namely the dual pricing, i.e., the possibility for the supplier to charge different wholesale prices to the same buyer depending on whether the goods are to be sold online and offline, as well as the ability to impose different criteria for online and offline sales in selective distribution systems. As regards resale price maintenance (RPM), the new Vertical Guidelines clarify that the imposition of minimum advertised prices will be treated as an indirect form of RPM and therefore excluded from the exemption.
The revised VBER rules have also been simplified, with the aim to make them more accessible to the day-to-day business users. In particular, the VBER rules have been updated with regard to the assessment of online restrictions, vertical agreements in the platform economy, and agreements that pursue sustainability objectives such as climate change (for instance, through the reduction of greenhouse gas emissions), protection of the environment or limiting the use of natural resources. The Vertical Guidelines provide detailed guidance on a variety of topics, such as selective and exclusive distribution and agency agreements. Their structure has also been simplified to provide a clearer framework of analysis for vertical agreements.
The new VBER and Vertical Guidelines, which entered into force on 1 June 2022, provide for a one-year transitional period until 31 May 2023 for existing agreements to be aligned with the new rules.
EU Public Consultation to Streamline Merger Control Procedures
On 6 May 2022, the European Commission (Commission) launched a public consultation to gather feedback from interested parties on its draft revised Merger Implementing Regulation and Notice on Simplified Procedure (Consultation). The Merger Implementing Regulation sets out the rules of procedure (e.g., notification, deadlines, right to be heard, and template notification forms.). The Notice on Simplified Procedure provides guidance with respect to the treatment of transactions under the simplified procedure, which is typically applied to nonproblematic transactions.
The Consultation is part of a wider context which dates back to August 2016, when the Commission started the review process of the merger procedural and jurisdictional rules. In March 2021, the Commission opened a first public consultation, at the end of which it published the draft revised Merger Implementing Regulation and Notice on Simplified Procedure.
A key objective of the Consultation is to identify additional cases that could benefit from the simplified procedure, while also adding safeguards to identify otherwise qualifying cases meriting more detailed review. In fact, although the Notice on Simplified Procedure already covers a number of scenarios where transactions can fall within its scope, there might still be transactions that are generally unproblematic but are currently not captured by the simplified procedure. In addition, on some occasions the information requests issued by the Commission to the merging parties can be too extensive. Another aspect of the Consultation concerns the streamlining of the Commission’s notification forms.
As a result, the main changes proposed by the draft revised Merger Implementing Regulation and Notice on Simplified Procedure are:
Extension of cases eligible for the simplified procedure.
Introduction of a flexibility clause to facilitate the Commission’s application of the simplified procedure treatment to transactions which do not meet the simplified procedure categories, if requested by the notifying party(ies).
Introduction of safeguards and exclusion categories, according to which the Commission may refuse to apply the simplified procedure to cases that merit a more detailed review.
Introduction of a “super simplified procedure” for transactions without horizontal overlap, vertical relationship or for a joint venture inactive in the European Economic Area.
Adoption of “hybrid decisions,” in case a notified transaction also results in horizontal overlaps or vertical relationships meeting the conditions for the simplified procedure. In such cases, the Commission will not conduct a detailed assessment of the horizontal overlaps or vertical relationships but will simply state that certain horizontal overlaps or vertical relationships fall within one or more of the categories eligible for the simplified procedure.
The requirement of more information on the source of the data provided.
Extension of third parties’ right to receive nonconfidential versions of the statement of objection (i.e., the formal step in the Commission’s investigation where the Commission informs the parties, in writing, of the objections raised against them).
Introduction of a new filing form in a “tick-the-box” format for simplified cases.
The filing and documents submission will take place electronically, for both the standard and simplified procedure.
The Commission will use the information gathered in the Consultation to finalise the drafting of the new rules, which are expected to enter into force in 2023. The Commission’s proposals are expected to contribute to the removal of unnecessary administrative burdens on businesses and enable the Commission to more efficiently allocate its resources on cases that deserve closer scrutiny.
INTERNAL MARKET AND CONSUMER PROTECTION
EU Co-Legislators Reach Agreement on Common Charger
On 7 June 2022, the Council of the European Union and European Parliament reached a provisional political agreement on a proposal for a directive introducing a common charger for electronic devices (Directive).
The Directive aims to make the USB-C charging port mandatory for a wide range of electronic devices, including mobile phones, tablets and e-readers, digital cameras, headphones, and laptops. More devices may be included in the future, subject to the regular assessment of the market by the European Commission.
Besides the harmonisation of charging port and fast charging technology, the new rules will also harmonise charging speed for devices that support fast charging, enable consumers to purchase a new electronic device without a new charger and oblige producers to provide relevant information about charging performance.
The provisional political agreement is still subject to formal approval by the Council and Parliament, which is expected to take place after the summer recess. Following the formal approval, the Directive will be published in the EU Official Journal and will enter into force 20 days after publication.
The Directive will start to apply after 24 months, i.e., most likely in 2024. Laptops will have to be adapted to the requirements of the Directive within 40 months after its entry into force. The new rules will not apply to products placed on the market before the Directive starts to apply.
The Fight Against Online Child Sexual Abuse and Its Threats to Privacy
In early May 2022, the European Commission proposed a law to enforce the tracking, reporting, and removal of online child sexual abuse (CSA) material. Digital providers will have to publicly report on annual basis the number of items found and taken down.
According to the proposal, the new rules “would limit the scope of certain rights and obligations which are currently in the ePrivacy Directive, notably those on the confidentiality of communications in order to enable companies to identify CSA taking place on their systems after the issuance of a detection order, subject to strict safeguards.” Regulators will be able to request a court order seeking to require internet service providers to block a link that contains CSA material.
Digital companies like hosting services, clouds, messaging apps, internet access services and app stores would be required to track photos and videos of CSA or face fines of up to 6% of their global revenue. Companies would also have to restrict “grooming” practices, such as conversations where offenders try to inappropriately connect with minors.
The new rules include mandatory risk assessment and risk mitigation measures; targeted detection obligations, based on a detection order; clear reporting obligations; effective removal; as well as oversight mechanisms and judicial redress.
The proposal also includes the creation of a new independent EU centre in The Hague, which will coordinate the fight against the sexual exploitation of children, working alongside Europol.
The proposed bill is facing serious challenges from the German government, which has characterised the bill as an attack on privacy and fundamental rights, stating that the approach could result in mass surveillance of people’s private messages.
German Minister for Digital and Transport, Volker Wissing, stated that the proposal “crosses a line that has actually been drawn quite clearly by national and European courts in the past. I will therefore resolutely stand up against the warrantless chat control and the circumvention of end-to-end encryption and do everything possible to ensure that this does not happen.”
European Commissioner for Home Affairs, Ylva Johansson, addressed the German criticism by stating that the proposal “is much more targeted than the current regime to scan for illegal images and will allow companies to only do a detection after a court decision, after consultation with data protection authorities and with specific technologies that have been approved.”
According to the U.S. National Center for Missing and Exploited Children, eighty-five million videos and images of CSA were produced in 2021 alone. Due to the lack of regulation, the number is likely to be underestimated.
MEPs Present Draft Report on Artificial Intelligence Act
At the end of April 2022, lead rapporteurs for the Artificial Intelligence Act (AI Act) Brando Benifei (S&D, Italy) and Dragos Tudorache (Renew Europe, Romania) published their long awaited draft report on the bill. It was subsequently introduced on 11 May to the joint meeting of the Internal Market and Consumer Protection committee (IMCO) and the Civil Liberties, Justice and Home affairs committee (LIBE), the committees responsible for the AI Act in the European Parliament.
The two rapporteurs agreed with the broad AI definition proposed by the European Commission (Commission) in the bill and they kept the definition mostly unchanged, although they did delete the Commission’s specification that the objectives for which an AI system is developed are “human-defined.” Furthermore, the draft report added “predicting policies” (defined as the use of predictive analytics based on mathematical models and other analytical techniques in law enforcement in order to identify potential criminal activity) practices to what the AI Act lists as forbidden practices in order to tackle discriminatory actions. The co-rapporteurs also added several new cases to be considered high-risk AI systems, such as AI systems used to influence or shape children’s development or AI systems used by candidates or parties to influence votes in political elections, as well as AI systems used to count votes.
In terms of governance and enforcement, the draft report suggested to expand the tasks of the European Artificial Intelligence Board (composed of representatives from the member states and the Commission) by giving it an important role in the uniform application of the AI Act and in providing advice and recommendations to the Commission. The text also proposed a new enforcement mechanism, adding a European-level enforcement to national watchdogs. This new mechanism would be led by the Commission and would be triggered in cases of widespread infringement in three or more member states.
Certain subjects were not addressed in the draft report because the two rapporteurs could not agree. For example, in order to benefit small-to-medium enterprises, Member of European Parliament (MEP) Tudorache supports the establishment of regulatory sandboxes1 to be possible at the regional level (instead of only by one or more member states’ competent authorities or by the European Data Protection Supervisor). MEP Benifei does not agree with this proposal but he wants to increase the responsibilities of users (e.g., the compliance process for system providers). Here again, Mr Tudorache is taking a pro-business approach and agrees with the responsibilities already stated in the Commission’s proposal.
In parallel to the publication of the draft report by the co-rapporteurs, on 3 May, the Parliament’s Special Committee on Artificial Intelligence in a Digital Age (AIDA) adopted its final report providing general recommendations and insights on AI. The text recommended setting up an AI roadmap up to 2030. Furthermore, it stated that the European Union should not systematically regulate AI as a technology and the level of regulatory intervention should be proportionate to the risk associated with the use of the relevant AI system. It also identified policy options to unlock AI’s potential in health, environment and climate change. The AIDA final report will clearly feed into the debate on the AI Act draft report, the vote for which is set in the relevant Parliament committees IMCO and LIBE at the end of September.
EU Institutions Reached a Provisional Agreement on EU-Wide Cybersecurity Rules
On 13 May 2022, the European Parliament and member states, grouped in the Council of the European Union, reached a political agreement on the directive on measures for a high common level of cybersecurity across the Union, the NIS 2 Directive.
Building on the Network and Information Security (NIS) Directive that came into force in 2016, the agreed new rules are aiming to set the baseline for cybersecurity risk management and reporting obligations across the European Union. The NIS 2 Directive strengthens cybersecurity requirements imposed on companies, addresses security of supply chains, introduces accountability of top management for noncompliance, lays down mechanisms for effective cooperation among national authorities, and includes provisions for remedies and sanctions.
The previous rules of the NIS Directive allowed member states to determine which entities would qualify as operators of essential services. The NIS 2 Directive effectively obliges more entities to take cybersecurity risk management measures, as all medium-sized and large entities operating within the sectors covered by the NIS 2 Directive will fall within its scope. NIS 2 Directive sectors that are critical for the economy and society include public electronic communications services, digital services, waste management, manufacturing of critical products, postal services, public administration, as well as healthcare. In contrast, the NIS 2 Directive will not apply to entities active in areas such as defense or national security, public security (including parliaments and central banks), law enforcement and the judiciary.
The political agreement on the NIS 2 Directive is now subject to formal approval by the European Parliament and the Council. The Directive will enter into force 20 days after its publication in the Official Journal of the European Union and member states will then have 21 months to transpose the new rules into national law.
ECONOMIC AND FINANCIAL AFFAIRS
European Securities and Markets Authority Consults on Notification of Cross-Border Marketing and Management of AIFs and UCITS
On 17 May 2022, the European Securities and Markets Authority (ESMA) launched a consultation to gather stakeholders’ views on its draft technical standards with regard to the information to be provided and the templates to be used by firms when notifying national competent authorities (NCAs) of their intention to perform cross-border marketing and cross-border management of alternative investment funds (AIFs) and undertakings for collective investment in transferable securities (UCITS). ESMA is particularly interested to hear from AIF managers, internally managed AIFs, UCITS, management companies, internally managed UCITS, and their trade associations, as well as professional and retail investors of UCITS and AIFs, and their associations.
Specifically, ESMA is consulting on the draft regulatory technical standards (RTS) stipulated in the UCITS Directive (2009/65/EC) and the AIF Managers Directive (AIFMD) (2011/61/EU) that define the required information to be submitted to relevant NCAs: (i) by management companies that intend to carry out their activities in a host member state, either directly or through a branch; and (ii) by Alternative Investment Fund Management (AIFM) that intend to manage AIFs established in other member states, either directly or through a branch.
The consultation also includes draft implementing technical standards (ITS) stipulated in the abovementioned Directives, that specify the format and content of the notification letters to be submitted: (i) by UCITS to their home NCA when proposing to market their units in a host member state; (ii) by AIFMs to their home NCA when proposing to market the units or shares of the AIFs they manage in the home member state or another member state; and (iii) by management companies and AIFMs to their home NCA when proposing to manage UCITS and AIFs established in other member states.
The consultation runs until 9 September 2022. Responses to this consultation will feed into the development of the final set of standards, which ESMA expects to publish by the beginning of 2023.
EBA Advises Commission on Regulation and Supervision of Nonbank Lenders in Europe
On 4 May 2022, the European Banking Authority (EBA) issued a final report (dated 8 April 2022) in reply to the European Commission’s (Commission) February 2021 call for advice on digital finance and related issues, specifically with respect to the supervision of nonbank digital lending in Europe. The EBA was requested to probe the business models and legal structures employed by nonbank lenders and identify regulatory and supervisory issues that may hinder micro and macro risk management and cross-border provision of lending services. In addition, the Commission also requested an assessment of the extent to which nonbank lending operations fall outside the European banking and financial services regulatory perimeter.
The report first analyses the current state of the nonbank lending market, with a particular emphasis on nonbank lending in the European Union that is operated by bigtech and fintech, and lending involving the collateralization of crypto-assets (so-called “crypto-asset lending”). This is followed by an examination of carve-outs foreseen in the Capital Requirements Directive for nonbank lenders and the European Crowdfunding Service Provider Regulation, Alternative Investment Fund Managers Directive, Consumer Credit Directive, and Mortgage Credit Directive rules that apply to specific categories of nonbank lenders. The report also illustrates instances where certain nonbank lending activities are not subject to anti-money laundering and countering the financing of terrorism (AML/CFT) rules.
Based on its analysis, the EBA proposes to: (i) enhance the disclosure requirements to adapt to new forms of lending and reinforce the requirements for the creditworthiness assessment to safeguard the interest of consumers; (ii) further develop the authorization and admission regimes for nonbank lenders and provide clarification on the identification of the prudential perimeter and supervisory responsibilities in cross-border provision of services; (iii) subject all nonbank lenders, in a more comprehensive manner, to the EU-wide AML/CTF framework; and iv) enhance the existing monitoring and reporting frameworks and develop activity-based macroprudential measures to cover all credit providers.
Taxonomy: the European Parliament Does Not Object to Inclusion of Natural Gas and Nuclear Activities in the EU Taxonomy
The Complementary Climate Delegated Act on climate change mitigation and adaptation presented by the Commission on 2 February 2022 includes certain nuclear and natural gas activities under the so-called “transitional” activities covered by Article 10(2) of the Taxonomy Regulation. These are activities that cannot yet be replaced by technologically and economically feasible low-carbon alternatives but have the potential to play a major role in the transition to a climate-neutral economy, in line with the EU objectives. The European Commission (Commission) adopted the Complementary Climate Delegated Act on 9 March 2022.
In a joint meeting of the Economic and Monetary Affairs Committee and the Environment, Public Health and Food Safety Committee that took place on 14 June 2022, Members of European Parliament (MEPs) adopted a resolution objecting to the Commission’s proposal. The MEPs resolution recognised the role of nuclear and natural gas in guaranteeing stable energy supply during the transition to a sustainable economy. However, they consider that the technical screening standards proposed by the Commission in the Complementary Climate Delegated Act do not respect the criteria for environmentally sustainable economic activities set out by the Taxonomy Regulation.
During the plenary session that took place on 6 July 2022, the European Parliament rejected a motion to oppose the inclusion of nuclear and natural gas as environmentally sustainable economic activities. The absolute majority of 353 MEPs required to reject the Commission’s proposal was not reached (278 MEPs voted in favour of the resolution, 328 against, and 33 abstained).
If the Council of the European Union (Council) does not object to the proposal, the Complementary Climate Delegated Act will enter into force and apply as of 1 January 2023.
European Parliament Adopts Position on Three Key files (ETS, CBAM and Social Climate Fund) for Fit for 55 package
On 22 June 2022, the European Parliament (Parliament) gave the green light to three key pieces of legislation belonging to the so-called “Fit for 55” package: i) the revision of the Emissions Trading System (ETS), which aims to reduce the number of emission allowances at an annual rate of 2.2% from 2021 onwards in order to increase the pace of emissions cuts; ii) the proposal for a Carbon Border Adjustment Mechanism (CBAM), the new mechanism set out by the European Commission (Commission) to prevent carbon leakage by imposing a carbon tariff to products imported into the European Union; and iii) the proposal for a Social Climate Fund, proposed by the Commission as part of the revision of the ETS, in order to address any social impact arising from the fact that the bill proposed to extend emissions trading to the building and road transport sectors.
The three files were adopted in a plenary session of the Parliament in Brussels, following their dramatic rejection during the 8 June plenary session in Strasbourg.
The main reason for the rejection in the first plenary was a disagreement amongst political groups on the phase out timeline for the allocation of free emission allowances to industrial installations.
The report adopted by the lead committee, the Environment, Public Health and Food Safety (ENVI) committee had proposed to phase out the allocation of free allowances to industrial installations by 2030. However, some political groups pushed for the allocations to phase out by 2034. The disagreement led to a rejection of the entire report with 340 votes against, 265 in favour and 34 abstentions. Consequently, all three files were sent back to the ENVI committee for further debate.
On the second round of voting on 22 June, all files passed; the revision of ETS with 439 votes in favour against 157 and 32 abstentions, the CBAM with 450 in favour against 115 and 55 abstentions, and the Social Climate Fund with 479 in favour against 103 and 48 abstentions.
In this context, a compromise had been reached by the three main political groups, S&D, Renew Europe and EPP on 15 June to set the phase out timeline for the allocation of free allowances between 2027 and 2032.
The Parliament is now ready to enter into Interinstitutional negotiations with the Council for the purpose of reaching a compromise text between the two legislative bodies for all three pieces of legislation.
Violation of EU Sanctions to Be Added to the “List of EU Crimes”
Currently, the European Union has over forty sets of restrictive measures in place against as many third countries. However, inconsistent enforcement of those measures from one EU country to another undermines their efficacy. In addition, national systems differ significantly in terms of criminalisation of the violation of restrictive measures. In this context, the European Commission (Commission) proposed to add the violation of restrictive measures to the areas of crime laid down in Article 83(1) of TFEU.
On 25 May 2022, the Commission introduced a legal proposal to add the violation of EU restrictive measures to the list of EU crimes and to ensure that the assets of individuals and entities that violate the restrictive measures can be effectively confiscated.
According to the Commission, as the adoption of restrictive measures has intensified, so have the schemes to evade them, including by listed individuals who are well resourced and able to avail themselves of “facilitators” (e.g., lawyers, notaries) and “tools” (complex legal structures to hide beneficial ownership of the assets for instance) to escape their application; and, insufficient priority has been given to prosecuting the violation of restrictive measures in many member states.
In the absence of the right tools and resources to prosecute the violation of restrictive measures, designated individuals and legal persons whose assets are frozen continue to be able to access their assets in practice.
This proposal aims at initiating the procedure set out in Article 83(1) TFEU, which allows for the Council of the European Union, through formal decision, to add new types of crime to the list of EU crimes, subject to certain criteria. Adding restrictive measures to the list will enable the Commission to propose harmonized rules, including criminal sanctions for such crimes.
The potential proposed criminal offences listed by the Commission could include actions such as engaging in activities that seek to directly or indirectly circumvent the restrictive measures, including by concealing assets; failing to freeze funds belonging to, held or controlled by a designated person or entity; or engaging in trade, such as importing or exporting goods covered by trade bans.
In parallel, the Commission proposed a directive on asset recovery and confiscation. Although this proposal would apply uniformly to all listed EU crimes, the new rules would contribute to the effective application of restrictive measures in two ways. First, it requires member states to launch asset identification investigations and to extend the mandate of asset recovery offices to swiftly trace property of listed individuals and entities, and urgently freeze it. Second, by making the enhanced rules on asset recovery and confiscation applicable to the criminal offence of violation of restrictive measures, the proposal would ensure the effective confiscation of proceeds derived from the violation of restrictive measures.
Accompanying the proposals, the Commission shared a communication, setting out how a future directive on minimum criminal penalties for the violation of EU restrictive measures could look.
As of April 2022, member states reported frozen assets worth €9.89 billion and blocked €196 billion worth of transactions. The assets include yachts, villas, and art belonging to sanctioned individuals and entities.
Antoine De Rohan Chabot, Stefano Prinzivalli Castelli, Petr Bartoš, Joanna Kulewska, Matilde Manzi and Inês S. Mendes contributed to this article
1 Regulatory sandboxes are specific frameworks set up in a structured context for experimentation, enabling to test innovative technologies, business models, products or services in a real-word environment for a limited period of time and in a limited part of a sector or area under regulatory supervision making certain that appropriate safeguards are in place.