foreign subsidies

EU Foreign Subsidies Regulation Likely in Force in 2023

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Antitrust Watch

Following a trend towards protectionism that seems quite fashionable in many jurisdictions globally those days, the European Commission proposed, on 5 May 2021, a regulation on foreign subsidies distorting the internal market (hereafter “FSR”) intended to ensure a level playing field between companies subject to EU State aid rules and companies which are not.

On 30 June 2022, the co-legislators (EU Parliament and Member States) reached a political agreement on the text, meaning that the regulation could be formally adopted in the coming months and become effective as soon as 2023.

For people unfamiliar with EU State aid rules, the EU has a rather unique regime in place which aims at tackling government support, whatever its form, in favor of economic operators, which is likely to distort or distorts competition and trade within the EU. But, today, there is no equivalent set of rules that can be enforced in relation to subsidies received by economic operators from third countries. The traditional Section on subsidies contained in trade instruments or the Regulation (EU) 2016/1037 on protection against subsidized imports from countries not members of the European Union which are limited in their scope may indeed hardly qualify as an equivalent. This asymmetry was highly criticized over the past few years, as it was schematically deemed to put European companies at a disadvantage compared to foreign companies heavily subsidized by their home country (Chinese companies were particulary in the spotlight).

With the FSR, this asymmetry or enforcement gap shall now be history.

The FSR will provide the European Commission with new tools and powers to investigate foreign subsidies granted to companies that are engaged or will engage in economic activities in Europe and to remedy their distortive effects on competition.

Prior notification obligations for concentrations and public procurement bids meeting certain thresholds

In case of a merger, acquisition or creation of a full-function joint venture, the transaction will have to be notified to the European Commission prior to its implementation if the following cumulative thresholds are met:

(a) an annual turnover generated in the EU of at least EUR 500 million by the target of the acquisition, by any of the merging undertakings, or in the case of a joint venture, by the joint venture itself if it is established in the EU or by one of the parent companies if it is established in the EU; and

(b) subsidies amounting to at least EUR 50 million.

This review will run in parallel with the traditional EU merger control review (if also applicable).

In case of a public procurement procedure, a bid will have to be notified to the European Commission and the award of the contract put on hold if the following cumulative thresholds are met:

(a) the estimated contract value is at least EUR 250 million; and

(b) the bid involves a foreign subsidy of at least EUR 4 million by a single third country.

To ensure efficient control, the Commission will be vested with investigatory powers in that context (power to send information requests to companies, power to conduct fact-finding missions and inspections, etc…).

Following the notification, the Commission will be able to (i) prohibit the concentration or the award of the contract to the concerned bidder, (ii) impose behavioral and structural remedies or accept commitments, or (iii) issue full clearance. A breach of the notification obligation will potentially be fined up to 10% of the aggregated turnover of the undertakings concerned.

Ex-officio investigations

The Commission will also have the power to launch investigations on its own initiative into any other market situation where there is a suspicion of distortion of competition due to foreign subsidies. This includes but is not limited to concentrations and public procurement procedures where the thresholds above are not met. Again, the Commission will have investigatory powers as well as the power to impose fines on non-cooperative undertakings.

Challenges ahead

This is an innovative and very ambitious tool, which was finally drawn up in a relatively short period of time (less than 14 months) and for which a certain number of points will have to be clarified quickly for the sake of legal certainty.

It remains to be seen whether it will succeed in achieving its objectives and not produce (too many) undesirable effects. For example, there may be unintended consequences as this new regulation will not only affect state-controlled companies outside the EU, but all companies (including EU companies) that benefit from foreign subsidies while carrying out or preparing to carry out economic activities in Europe.

While waiting to see the first effects of the FSR, the efficiency of the European institutions in producing laws (be they hard or soft) and moving fast on competition/regulatory topics is to be commended, as it must be remembered that the FSR will be only one of many areas to be monitored in relation to competition enforcement in the EU, at a time when additional regulation (Digital Markets Act) is being put in place and current procedures and policies are being updated.

Foreign subsidies: The European Commission goes extraterritorial

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The EU State Aid regime has long protected the EU internal market from anti-competitive subsidies granted by EU Member States. On 17 June 2020, the European Commission published a White Paper that proposes a new set of tools designed to address distortive effects in the internal market caused by subsidies granted by states outside the EU.

The White Paper outlines three complementary tools, or “modules”, intended to tackle the distortive competitive effects arising from foreign subsidies. These modules would be implemented by “supervisory authorities”, possibly at EU-level (most likely by the Commission itself) and/or at national level by an authority chosen by the Member State. For each of the three modules, the existence of a foreign subsidy with an actual or potential disruptive effect in the EU would be assessed in a “preliminary review”, potentially followed by an “in-depth investigation”. Undertakings under investigation could face “redressive measures” including the prohibition or even unwinding of certain transactions, or else make commitments to avoid prohibition. Failure to comply with procedural obligations would be subject to fines and periodic penalty payments.

Module 1 – General instrument to capture distortive effects of foreign subsidies

This largely mirrors the existing EU State Aid regime that applies to states in the European Economic Area (EEA). It proposes a general instrument that could capture all distortive effects of foreign subsidies exceeding a certain threshold, currently proposed at EUR 200,000 over three consecutive years. The Commission lists several categories of distortive subsidies, i.e. foreign subsidies that would distort the EU’s internal market: export financing, debt relief to the benefit of ailing undertakings, unlimited government guarantees, individual tax reliefs and foreign subsidies directly facilitating an acquisition.

For all other forms of subsidies, a more detailed assessment would be necessary, based on indicators such as the size of the subsidy, the size of the beneficiary and the utilisation of production capacity, the market situation, specific behaviour such as outbidding in acquisitions or distortive bidding in procurement procedures, and the level of activity of the beneficiary in the EU. If a distortive effect is established, it would be weighed up against any positive impact (the “EU interest test”), taking into account EU objectives such as job creation, climate neutrality goals, digital transformation, security, public order, public safety and resilience. Redressive measures could range from structural remedies and behavioural measures, to redressive payments to the EU, or the Member States, and could be subject to a limitation period of ten years.

Module 2 – Control of acquisitions facilitated by foreign subsidies

This proposes to tackle subsidised acquisitions of EU businesses by introducing an ex ante notification system, separate from and complementary to EU merger control and foreign direct investment screening. This module would investigate direct facilitation of acquisitions by foreign subsidies, as well as indirect de facto facilitation when foreign subsidies increase the acquirer’s financial strength. The regime would be subject to certain quantitative and qualitative thresholds and cover not only the acquisition of control over EU targets, but also the acquisition of significant – but possibly non-controlling – minority rights or shareholdings. The time period for the benefit of foreign subsidies would be limited, e.g. from three years prior to the notification until one year after closing. To avoid a prohibition of the planned transaction the acquirer could offer commitments, which would likely have to include structural remedies.

The proposals also envisage an ex officio review process to scrutinise acquisitions that should have been notified by the acquirer but were not, including after they have completed. The module includes the right to order the unwinding of completed transactions.

Module 3 – Control of unfair advantages in public procurement due to foreign subsidies

This complements the public procurement regime by introducing an additional notification obligation when submitting a bid, where the bidding party has received a “financial contribution” in the last three years. This module would address direct distortion of a procurement procedure by operation-specific foreign subsidies, as well as indirect de facto distortion by increasing the financial strength of the operator. The Commission aims to avoid situations where artificially low public procurement bids are facilitated by foreign subsidies. If a bidder is found to benefit from foreign subsidies, it could be excluded from public procurement in the EU.

The White Paper also identifies a risk that foreign subsidies create unfairness in the context of EU funding. The proposals are less developed, but the solution could be similar to Module 3 where EU funding is distributed through public tenders.

Hurdles and next steps

A first obstacle might be resistance by national governments that will scrutinise the proposal – the outcome of this process will influence the distribution of powers between the Commission and the Member States. For the general instrument (Module 1) as well as the public procurement instrument (Module 3), it is proposed that the Commission and the relevant national authorities would have concurrent authority for the initial stages. However, the Commission proposes to be exclusively competent to apply the EU interest test. Similar to its “one-stop shop” role in EU merger control, the Commission envisages exclusive responsibility for the enforcement of the ex ante control of acquisitions facilitated by foreign subsidies (Module 2).

In any event, enforcement outside the EEA will largely depend on third countries’ willingness to co-operate, which is not a given. State aid is highly political – foreign countries are unlikely to give the EU access to detailed information, unless the benefit of achieving EU approval outweighs the intrusion in the foreign state’s autonomy and political process. While the White Paper proposes an obligation to provide information, as well as powers to impose a fine or to order parties to unwind a transaction, the lack of effective enforcement outside the EEA could jeopardize the new regime(s). Even providing the supervisory authorities with the possibility to make decisions based on the facts available would not fully address this fundamental and intrinsic weakness.

Conversely, foreign companies benefiting from subsidies may lack information that would enable them to argue either the absence of a distortive effect, or the benefits outweighing such distortive effects. These dynamics could cause a stalemate between the EU and foreign countries, with increased trade barriers as a result.

The Commission acknowledges that there might be overlaps with existing legal tools, including international law such as the WTO Agreement on Subsidies and Countervailing Measures (for goods), as well as bilateral free trade agreements with third states, which may contain relevant dispute settlement or consultation provisions. In case of overlapping actions, the White Paper merely suggests the ability to suspend the proceedings under the proposed new instruments and to conditionally resume those if the distortion persists.

A public consultation is open for stakeholders to comment on the White Paper until 23 September 2020, with proposed legislation scheduled for 2021. Legislation is unlikely to come into force before 2022.