Activities of Alfred SANT related to 2021/0114(COD)
Shadow opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council on foreign subsidies distorting the internal market
Amendments (113)
Amendment 41 #
Proposal for a regulation
Recital 1
Recital 1
(1) A strong, open and competitive internal market enables both European and foreign undertakingsall undertakings active in the Union to compete on merits. The Union benefits from a sophisticated and effective system of State aid control, aiming at ensuring fair conditions for all undertakings engaging in an economic activity in the internal market. This State aid control system aims at preventsing Member States from granting State aid that unduly distorts competition in the internal market.
Amendment 43 #
Proposal for a regulation
Recital 2
Recital 2
(2) At the same time, undertakings might receive subsidies from third countries, that provide public funds which are then used, for instance, which could be used to finance economic activities in the internal market in any sector of the economy, such as participation in public procurement tenders, or acquisitions of undertakings, including those with strategic assets such as critical infrastructure and innovative technologies. Such subsidies are currently not subject to Union State aid rules.
Amendment 49 #
Proposal for a regulation
Recital 4
Recital 4
(4) No existing Union instruments do not properly address distortions caused by foreign subsidies. Trade defence instruments enable the Commission to act when subsidised goods are imported into the Union, but not when foreign subsidies take the form of subsidised investments, or when services and financial flows are concerned. Under the WTO Agreement on Subsidies and Countervailing Measures, the Union has the possibility to initiate State-to-State dispute settlement against certain foreign subsidies granted by WTO members and limited to goods.
Amendment 50 #
Proposal for a regulation
Recital 5
Recital 5
(5) It is therefore necessary to complement existing Union instruments withhave in place an international structure that deals with the area of subsidies from different jurisdictions. In its absence, a new tool to effectively deal with distortions in the internal market caused by foreign subsidies and to ensure a level playing field. In particular, t will be created. The new tool complements Union State aid rules which deal with distortions in the internal market caused by Member State subsidies.
Amendment 57 #
Proposal for a regulation
Recital 7
Recital 7
(7) To ensure a level playing field throughout the internal market and consistency in the application of this Regulation, the Commission should be the sole authority competent tohave a pivotal role when applying this Regulation. The Commission in conjunction with national competition authorities should have the power to examine any foreign subsidy to the extent it is in the scope of this Regulation in any sector of the economy on its own initiative relying on information from all available sources in order to establish a Union dimension to the impact such subsidy could have. To ensure effective control, in the specific case of large concentrations (mergers and acquisitions) and public procurement procedures above certain thresholds, the Commission should have the power to review foreign subsidies based on a prior notification by the undertaking to the Commission.
Amendment 58 #
Proposal for a regulation
Recital 7 a (new)
Recital 7 a (new)
(7 a) The competent authority having the power to investigate and redress foreign subsidies that have a Union dimension, and thereby distort the internal market, is the European Commission. A Union dimension is established when a clear impact on the internal market has been recognised, as based on the notification thresholds listed in this Regulation. National competent authorities should be empowered to investigate and redress the foreign subsidies, if the subsidy has a distortive effect on the internal market without meeting the notification thresholds listed in this Regulation, or if the investigated foreign subsidy involves only one specific Member State. In the latter case, the Commission may also refer a notification to the competent authority of the Member State concerned. In this Regulation the reference to the competent authority will be the investigative authority unless otherwise specifically indicated.
Amendment 59 #
Proposal for a regulation
Recital 7 b (new)
Recital 7 b (new)
(7 b) A structured communication network between investigative authorities should be established.
Amendment 61 #
Proposal for a regulation
Recital 9
Recital 9
(9) There should be a financial contribution provided, directly or indirectly, by the public authorities of a third country. The financial contribution may be granted through public or private entities. Whether a public entity provides a financial contribution should be determined on a case-by-case basis with due regard to elements such as the characteristics of the relevant entity and the legal and economic environment prevailing in the country in which the entity operates including the government’s role in the economy. Financial contributions in the form of a foreign subsidy may also be granted through a private entity if its actions can be attributed to the third country.
Amendment 70 #
Proposal for a regulation
Recital 12
Recital 12
(12) Once the existence of a foreign subsidy is established, the Commission should assess whether the foreign subsidy distorts the internal market. Unlike State aid granted by a Member State, foreign subsidies are not generally prohibited. Subsidies in the form of export financing may be a cause of particular concern because of their distortive effects. This is not the case if such financing is provided in line with the OECD Arrangement on officially supported export credits. The Commission should assess on a case-by- case basis whether a foreign subsidy distorts the internal market. If the threshold for notification is not met, the case can be referred by the Commission to the national competition authorities of the relevant Member States.
Amendment 71 #
Proposal for a regulation
Recital 13
Recital 13
(13) The lack of transparency concerning many foreign subsidies and the complexity of the commercial reality may make it difficult to unequivocally identify or quantify the impact of a given foreign subsidy on the internal market and equally difficult for companies to identify all the relevant subsidies. To determine the distortion, it therefore appears necessary to use a non-exhaustive set of indicators. When assessing the extent to which a foreign subsidy can improve the competitive position of the undertaking concerned and, in doing so, actually or potentially negatively affects competition in the internal market, the Commissioninvestigative authority could have regard to certain indicators, including but not limited to the amount and nature of the subsidy, the purpose and conditions attached to the foreign subsidy as well as its use in the internal market.
Amendment 73 #
Proposal for a regulation
Recital 14
Recital 14
(14) When applying these indicators, the Commissioninvestigative authority could take into account different elements such as the size of the subsidy in absolute terms or in relation to the size of the market or to the value of the investment. For instance, a concentration, in the context of which a foreign subsidy covers a substantial part of the purchase price of the target, is likely to be distortive. Similarly, foreign subsidies covering a substantial part of the estimated value of a contract to be awarded in a public procurement procedure are likely to cause distortions. If a foreign subsidy is granted for operating costs, it seems more likely to cause distortions than if it is granted for investment costs. Foreign subsidies to small and medium-sized undertakings may be considered less likely to cause distortions than foreign subsidies to large undertakings. Furthermore, the characteristics of the market, and in particular the competitive conditions on the market, such as barriers to entry, should be taken into account. Foreign subsidies leading to overcapacity by sustaining uneconomic assets or by encouraging investment in capacity expansions that would otherwise not have been built are likely to cause distortions. A foreign subsidy to a beneficiary that shows a low degree of activity in the internal market, measured for instance in terms of turnover achieved in the Union, is less likely to cause distortions than a foreign subsidy to a beneficiary that has a more significant level of activity in the internal market. Finally, foreign subsidies not exceeding EUR 5 million should be deemed, as a general rule, unlikely to distort the internal market within the meaning of this Regulation.
Amendment 75 #
(16) The Commissioninvestigative authority should take into account the positive effects of the foreign subsidy on the development of the relevant subsidised economic activity. The Commission should weigh these positive effects against the negative effects of a foreign subsidy in terms of distortion on the internal market in order to determine, if applicable, the appropriate redressive measure or accept commitments. The balancing should also take into account the contribution of a foreign subsidy to overarching goals based on international agreements such as the Paris Agreement and the Sustainable Development Goals (SDGs). The balancing may also lead to the conclusion that no redressive measures should be imposed. Categories of foreign subsidies that are deemed most likely to distort the internal market are less likely to have more positive than negative effects. To this effect, the Commission should adopt a delegated act with guidance on the procedure adopted to balance the effects of foreign subsidies.
Amendment 79 #
Proposal for a regulation
Recital 17
Recital 17
Amendment 82 #
Proposal for a regulation
Recital 18
Recital 18
(18) The undertaking concerned should have the possibility to offer commitments in order to remedy the distortion caused by the foreign subsidy. If the Commissioninvestigative authority considers that the commitments offered fully and effectively remedy the distortion, it could accept them and make them binding by decision.
Amendment 83 #
Proposal for a regulation
Recital 19
Recital 19
(19) The undertaking concerned could offer to repay the subsidy, together with appropriate interest. The Commissioninvestigative authority should accept a repayment offered as a commitment if it can ascertain that the repayment fully remedies the distortion, is executed in a transparent manner and is effective in practice, while taking into account the risk of circumvention of the objectives of this Regulation.
Amendment 85 #
Proposal for a regulation
Recital 20
Recital 20
(20) Unless the undertakings concerned offer commitments that would fully and effectively remedy the identified distortion, the Commissioninvestigative authority should have the power to prohibit a concentration or the award of a public contract before it takes place. Where the concentration has already been implemented, notably in cases where no prior notification was required because the notification thresholds were not reached, the distortion may nonetheless be so substantial that it cannot be remedied by behavioural or structural measures or by the repayment of the subsidy. In such cases, the Commissioninvestigative authority could decide to remedy the distortion by ordering the undertakings concerned to dissolve the concentration.
Amendment 86 #
Proposal for a regulation
Recital 21
Recital 21
(21) The Commission should have the power, on its own initiative,investigative authority should have the power to examine any relevant information on foreign subsidies. To this end, it is necessary to establish a procedure consisting of two steps, namely a preliminary review and an in-depth investigation.
Amendment 88 #
Proposal for a regulation
Recital 22
Recital 22
(22) The Commissioninvestigative authority should be given adequate investigative powers to gather all necessary information. It should therefore have the power to request information from any undertaking or association of undertakings throughout the whole procedure. In addition, the Commissioninvestigative authority should have the power to impose fines and periodic penalty payments for failure to timely supply the requested information or for supplying incomplete, incorrect or misleading information. The Commissioninvestigative authority could also address questions to Member States or to third countries. Furthermore, the Commissioninvestigative authority should have the power to make fact-finding visits at the Union premises of the undertaking, or, subject to agreement by the undertaking and the third country concerned, at the premises of the undertaking in the third country. The Commissioninvestigative authority should also have the power to take decisions on the basis of facts available if the undertaking in question does not cooperate.
Amendment 90 #
Proposal for a regulation
Recital 23
Recital 23
(23) Furthermore, where necessary to restore competition in the internal market immediately and to prevent irreparable harm, the Commissioninvestigative authority should have the power to adopt interim measures.
Amendment 91 #
Proposal for a regulation
Recital 24
Recital 24
(24) In all cases where, as a result of the preliminary review, the Commissioninvestigative authority has sufficient indications of the existence of a foreign subsidy distorting the internal market, the Commissioninvestigative authority should have the power to launch an in-depth investigation to gather additional relevant information to assess the foreign subsidy, and to allow the interested parties to exercise their rights of defence.
Amendment 93 #
Proposal for a regulation
Recital 25
Recital 25
(25) The Commissioninvestigative authority should close the in-depth investigation by adopting a decision.
Amendment 95 #
Proposal for a regulation
Recital 26
Recital 26
(26) The Commissioninvestigative authority should have appropriate instruments to ensure the effectiveness of commitments and redressive measures. If the undertaking concerned does not comply with a decision with commitments, a decision imposing redressive measures, or a decision ordering interim measures, the Commissioninvestigative authority should have the power to impose fines and periodic penalty payments.
Amendment 96 #
Proposal for a regulation
Recital 27
Recital 27
(27) In order to ensure the correct and effective application of this Regulation, the Commissioninvestigative authority should have the power to revoke a decision and adopt a new one, where the decision was based on incomplete, incorrect or misleading information, or where an undertaking acts contrary to its commitments or the redressive measures imposed.
Amendment 98 #
Proposal for a regulation
Recital 28
Recital 28
(28) Given the potentially significant impact of concentrations on the internal market, the Commissioninvestigative authority should have the power, upon notification, to examine information on foreign financial contributions in the context of a proposed concentration. Undertakings should not be allowed to implement the concentration prior to the conclusion of the Commissioninvestigative authority’s review.
Amendment 99 #
Proposal for a regulation
Recital 29
Recital 29
(29) This examination by the Commissioninvestigative authority should follow the same procedure as the one where a foreign subsidy is reviewed on the Commissioninvestigative authority’s initiative, subject to adjustments to reflect the specificities of concentrations.
Amendment 100 #
Proposal for a regulation
Recital 31
Recital 31
(31) Below the notification thresholds, the Commissioninvestigative authority could require the notification of potentially subsidised concentrations that were not yet implemented or the notification of potentially subsidised bids prior to the award of a public contract, if it considers that the concentration or the bid would merit ex-ante review given their impact in the Union. The Commissioninvestigative authority should also have the possibility to carry out a review on its own initiative of already implemented concentrations or awarded public contracts.
Amendment 105 #
Proposal for a regulation
Recital 33
Recital 33
(33) The need to address distortive foreign subsidies is especially salient in public procurement, given its economic significance in the internal market and the fact that it is financed by taxpayer funds. The Commissioninvestigative authority should have the power, upon notification prior to the award of a public contract or concession, to examine information on foreign financial contributions to the participating undertakings in the context of a public procurement procedure. Prior notifications should be mandatory above a threshold set in this Regulation to capture economically significant cases while minimising the administrative burden and not hindering the participation of SMEs in public procurement. That obligation of prior notification above a threshold should also apply to groups of economic operators referred to in Article 26(2) of Directive 2014/23/EU of the European Parliament and of the Council40 , Article 19(2) of Directive 2014/24/EU of the European Parliament and of the Council41 and Article 37(2) of Directive 2014/25/EU of the European Parliament and of the Council42 . It should also apply to the main subcontractors and the main suppliers of undertaking. _________________ 40 Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ L 94, 28.3.2014, p. 1). 41 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65). 42 Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p. 243).
Amendment 107 #
Proposal for a regulation
Recital 37
Recital 37
(37) Taking into account the nature of the ex ante review mechanism for concentrations and public procurement awards, and the need for legal certainty regarding these specific transactions, a concentration or public procurement tender notified and assessed under the respective procedures cannot be reviewed again by the Commissioninvestigative authority on its own initiative. Financial contributions of which the Commissioninvestigative authority was informed through the notification procedure may however also be relevant outside the concentration or procurement procedure. In order to gather information on foreign subsidies, the Commissioninvestigative authority should have the possibility to launch investigations regarding specific sectors of the economy, particular types of economic activity or the use of particular foreign subsidy instruments.
Amendment 108 #
Proposal for a regulation
Recital 39
Recital 39
(39) In the interest of transparency and legal certainty, it is appropriate tohat the Commission publishes either in full or in a summary form all decisions adopted by the Commissiondifferent investigative authorities.
Amendment 109 #
Proposal for a regulation
Recital 40
Recital 40
(40) The Commission, wWhen publishing its decisions, investigative authorities should respect the rules on professional secrecy, including the protection of all confidential information, business secrets and personal data, in accordance with Article 339 of the Treaty.
Amendment 110 #
Proposal for a regulation
Recital 41
Recital 41
(41) In cases where information marked by the undertaking as confidential or business secret does not seem to be covered by obligations of professional secrecy, it is appropriate to have a mechanism in place according to which the Commissioninvestigative authority can decide the extent to which such information can be disclosed. Any such decision to reject a claim that information is confidential should indicate a period at the end of which the information will be disclosed, so that the respondent can make use of any judicial protection available to it, including any interim measure.
Amendment 112 #
Proposal for a regulation
Recital 46
Recital 46
(46) Where the Commissioninvestigative authority adopts a decision at the end of an in-depth investigation, Member States should be adequately involved prior to the decision making in an advisory procedure pursuant to Article 4 of Regulation (EU) No 182/2011 of the European Parliament and of the Council46 . The choice of this procedure is justified taking into account the role of Member States in competition and State aid instruments, which also aim at levelling the playing field in the internal market. _________________ 46 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
Amendment 113 #
Proposal for a regulation
Recital 48
Recital 48
(48) In order to ensure a level playing field on the internal market also in the long term, with a view to ensuring adequate coverage of cases investigated both through notifications as well as ex officio, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission in respect of amending the notification thresholds for concentrations and for public procurement procedures, exempting certain categories of unto provide details on the structure of a communication network between the different investigative authorities, dertakings from the notification obligations under this Regulation, as well as amending the time limits for the preliminary review and the in-depth investigations of notified concentrations or notified financial contributioniled rules on the calculation of time limits, the conditions and time limits for proposing commitments under Article 30, provide detailed rules ion the context of a public procurement procedure. In relationprocedural steps referred to financial contributions in the context of a public procurement procedure, the power to adopt such acts should be exercised in a way that takes into account the interests of SME Articles 28, 29, 30 and 31 as well as to provide with guidance on the procedure adopted to balance the effects of foreign subsidies. It is of particular importance that the Commission carries out appropriate consultations during the preparations of those acts, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making47 . In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council should receive all documents at the same time as Member States' experts, and their experts systematically should have access to meetings of Commission expert groups dealing with the preparation of delegated acts. _________________ 47 Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission of 13 April 2016 on Better Law-Making (OJ L 123, 12.5.2016, p. 1).
Amendment 115 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
(1) This Regulation lays down rules and procedures for investigating foreign subsidies that distort the internal market and for eventually redressing such distortions where detected. Such distortions may arise with respect to any economic activity, and in particular in concentrations and public procurement procedures.
Amendment 119 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
(2) This Regulation addresses foreign subsidies granted to an undertaking engaging in an economic activity in the EU's internal market. ASpecifically, an undertaking acquiring control or merging with an undertaking established in the Union or an undertaking participating in a public procurement procedure is considered to be engaging in an economic activity in the internal market.
Amendment 120 #
Proposal for a regulation
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
(2 a) The competent authority having the power to investigate and redress foreign subsidies that have a Union dimension and thereby distort the internal market is the European Commission. A Union dimension is established when a clear impact on the internal market has been recognised, as based on the notification thresholds listed in this Regulation.
Amendment 122 #
Proposal for a regulation
Article 1 – paragraph 2 b (new)
Article 1 – paragraph 2 b (new)
(2 b) A national competent authority shall have the same powers where the investigated foreign subsidy has a distortive effect on the internal market but falls below the notification thresholds, or if the subsidy involves only one specific Member State, or where a Union dimension has not been established. In this Regulation the reference to the competent authority will be the investigative authority unless otherwise specifically indicated.
Amendment 123 #
Proposal for a regulation
Article 1 – paragraph 2 c (new)
Article 1 – paragraph 2 c (new)
(2 c) A structured communication network between investigative authorities shall be established.
Amendment 131 #
Proposal for a regulation
Article 2 – paragraph 2 – point b a (new)
Article 2 – paragraph 2 – point b a (new)
(b a) The undertaking(s) concerned received from third countries an aggregate financial contribution in the three calendar years prior to notification of more than EUR50 million.
Amendment 133 #
Proposal for a regulation
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
Amendment 150 #
Proposal for a regulation
Article 4 – paragraph 1 – point 1
Article 4 – paragraph 1 – point 1
(1) a foreign subsidy granted to an ailing undertaking, that is to say which will likely to go out of business in the short or medium term in the absence of any subsidy, unless there is a restructuring plan that is capable of leading to the long-term viability of that undertaking and includes a significant own contribution by the undertaking;
Amendment 154 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
(1) The Commission shall, where warranted,investigative authority shall balance the negative effects of a foreign subsidy in terms of distortion on the internal market with positive effects on the development of the relevant economic activity taking into account the contribution of a foreign subsidy to overarching goals based on international agreements such as the Paris Agreement and the Sustainable Development Goals (SDGs).
Amendment 157 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
(2) The Commissioninvestigative authority shall take into account the balancing between the negative and positive effects when deciding whether to impose redressive measures or to accept commitments, and the nature and level of those redressive measures or commitments while respecting the international regime on trade.
Amendment 162 #
Proposal for a regulation
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
(2 a) The Commission shall be empowered to adopt delegated acts under Article 44 of this Regulation to specify how an investigative authority should apply this Article.
Amendment 164 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
(1) To remedy the distortion on the internal market actually or potentially caused by a foreign subsidy, the Commissioninvestigative authority may impose redressive measures. The undertaking concerned may also offer commitments.
Amendment 172 #
Proposal for a regulation
Article 6 – paragraph 4
Article 6 – paragraph 4
(4) The Commissioninvestigative authority may impose reporting and transparency requirements.
Amendment 173 #
Proposal for a regulation
Article 6 – paragraph 5
Article 6 – paragraph 5
(5) If an undertaking offers commitments which fully and effectively remedy the distortion on the internal market, the Commissioninvestigative authority may accept them and make them binding on the undertaking in a decision with commitments according to Article 9(3).
Amendment 176 #
Proposal for a regulation
Article 6 – paragraph 6
Article 6 – paragraph 6
(6) Where the undertaking concerned proposes to repay the foreign subsidy including an appropriate interest rate, the Commissioninvestigative authority shall accept such repayment as commitment if it can ascertain that the repayment is transparent and effective, while taking into account the risk of circumvention.
Amendment 177 #
Proposal for a regulation
Article 7
Article 7
Amendment 181 #
Proposal for a regulation
Article 8
Article 8
Amendment 187 #
Proposal for a regulation
Article 9
Article 9
Amendment 190 #
Proposal for a regulation
Article 10
Article 10
Amendment 196 #
Proposal for a regulation
Article 11
Article 11
Amendment 200 #
Proposal for a regulation
Article 12
Article 12
Amendment 211 #
Proposal for a regulation
Article 13
Article 13
Amendment 213 #
Proposal for a regulation
Article 14
Article 14
Amendment 216 #
Proposal for a regulation
Article 15
Article 15
Amendment 223 #
Proposal for a regulation
Article 16
Article 16
Amendment 242 #
Proposal for a regulation
Article 19 – paragraph 1
Article 19 – paragraph 1
(1) Notifiable concentrations above the thresholds outlined in Article 18 shall be notified to the Commission prior to their implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.
Amendment 245 #
Proposal for a regulation
Article 19 – paragraph 2
Article 19 – paragraph 2
(2) The undertakings concerned may also notify the proposed concentration when they demonstrate to the Commission a good faith intention to conclude an agreement or, in the case of a public bid, where they have publicly announced their intention to make such a bid, provided that the intended agreement or bid would result in a notifiable concentration under paragraph 1.
Amendment 246 #
Proposal for a regulation
Article 19 – paragraph 3 a (new)
Article 19 – paragraph 3 a (new)
(3 a) Prior to the notification of a concentration within the meaning of paragraph 1, the persons or undertakings referred to in paragraph 2 may inform the Commission, by means of a reasoned submission, that the concentration may significantly affect competition in a market within a Member State which presents all the characteristics of a distinct market and should therefore be examined, in whole or in part, by that Member State. The Commission shall transmit this submission to all Member States without delay.The Member State referred to in the reasoned submission shall, within 15 working days of receiving the submission, express its agreement or disagreement as regards the request to refer the case.Where that Member State takes no such decision within this period, it shall be deemed to have agreed. Unless that Member State disagrees, the Commission, where it considers that such a distinct market exists, and that competition in that market may be significantly affected by the concentration, may decide to refer the whole or part of the case to the competent authorities of that Member State with a view to the application of that State's national competition law. The decision whether or not to refer the case in accordance with the third subparagraph shall be taken within 25 working days starting from the receipt of the reasoned submission by the Commission.The Commission shall inform the other Member States and the persons or undertakings concerned of its decision.If the Commission does not take a decision within this period, it shall be deemed to have adopted a decision to refer the case in accordance with the submission made by the persons or undertakings concerned. If the Commission decides, or is deemed to have decided, pursuant to the third and fourth subparagraphs, to refer the whole of the case, no notification shall be made pursuant toparagraph1 and national competition law shall apply. Article 23a (6) to (9) shall apply mutatis mutandis.
Amendment 247 #
Proposal for a regulation
Article 19 – paragraph 4
Article 19 – paragraph 4
Amendment 252 #
Proposal for a regulation
Article 22 – paragraph 1
Article 22 – paragraph 1
The aggregate financial contribution to an undertaking concerned shall be calculated by adding together the respective financial contributions in the form of distortive State aid received from third countries by all undertakings referred to in Article 21(4), points (a) to (e).
Amendment 255 #
Proposal for a regulation
Article 23 a (new)
Article 23 a (new)
Amendment 260 #
Proposal for a regulation
Article 27 – paragraph 2
Article 27 – paragraph 2
(2) For the purpose of Article 28, a notifiable foreign financial contribution in an EU public procurement procedure shall be deemed to arise where the estimated value of that public procurement is equal or greater than EUR 250 million and the undertaking concerned received from third countries an aggregate financial contribution in the three calendar years prior to notification of more than EUR 50 million.
Amendment 264 #
Proposal for a regulation
Article 28 – paragraph 2
Article 28 – paragraph 2
(2) The obligation to notify foreign financial contributions under this paragraph shall extend to economic operators, groups of economic operators referred to in Article 26(2) of Directive 2014/23/EU, Article 19(2) of Directive 2014/24/EU and Article 37(2) of Directive 2014/25/EU, main subcontractors and main suppliers. A subcontractor or supplier shall be deemed to be main where their participation ensures key elements of the contract performance and in any case where the economic share of their contribution exceeds 305% of the estimated value of the contract.
Amendment 265 #
Proposal for a regulation
Article 28 – paragraph 4
Article 28 – paragraph 4
(4) The contracting authority or the contracting entity shall transfer the notification to the Commissioninvestigative authority without delay.
Amendment 266 #
Proposal for a regulation
Article 28 – paragraph 5
Article 28 – paragraph 5
(5) Where the undertaking, economic operators or groups of economic operators referred to in paragraph 1 fail to notify a foreign financial contribution, or where such a notification is not transferred to the Commission, the Commissionthe investigative authority may initiate a review.
Amendment 267 #
Proposal for a regulation
Article 28 – paragraph 6
Article 28 – paragraph 6
(6) Where the Commissioninvestigative authority suspects that an undertaking may have benefitted from foreign subsidies in the three years prior to the submission of the tender or request to participate in the public procurement procedure, it may request the notification of the foreign financial contributions received by that undertaking in any public procurement procedure which are not notifiable under Article 27(2) or fall within the scope of paragraph 5 of this Article, at any time before the award of the contract. Once the Commissioninvestigative authority has requested the notification of such a financial contribution, it is deemed to be a notifiable foreign financial contribution in a public procurement procedure.
Amendment 268 #
Proposal for a regulation
Article 29 – paragraph 2
Article 29 – paragraph 2
(2) The Commissioninvestigative authority shall carry out a preliminary review no later than 6030 working days after it received the notification.
Amendment 271 #
Proposal for a regulation
Article 29 – paragraph 3
Article 29 – paragraph 3
(3) The Commissioninvestigative authority shall decide whether to initiate an in-depth investigation within the time limit for completing the preliminary review and inform the undertaking concerned and the contracting authority or the contracting entity without delayin a 15 working day period.
Amendment 272 #
Proposal for a regulation
Article 29 – paragraph 4
Article 29 – paragraph 4
(4) The Commissioninvestigative authority may adopt a decision closing the in-depth investigation no later than 20060 working days after it received the notification. In exceptional circumstances, this time limit may be extended after consultation with the concerned contracting authority or contracting entity.
Amendment 274 #
Proposal for a regulation
Article 30 – paragraph 1
Article 30 – paragraph 1
(1) Where, after an in-depth investigation, the Commissioninvestigative authority finds that an undertaking benefits from a foreign subsidy which distorts the internal market pursuant to Articles 3 to 5, and where the undertaking concerned offers commitments that fully and effectively remove the distortion on the internal market, it shall adopt a decision with commitments pursuant to Article 9(3). The assessment under Article 5 shall not result in a modification of the initial tender submitted by the undertaking that is incompatible with Union law.
Amendment 275 #
Proposal for a regulation
Article 30 – paragraph 2
Article 30 – paragraph 2
(2) Where the undertaking concerned does not offer commitments or where the Commissioninvestigative authority considers that the commitments referred to in paragraph 1 are neither appropriate nor sufficient to fully and effectively remove the distortion it shall adopt a decision prohibiting the award of the contract to the undertaking concerned (“decision prohibiting the award of the contract”).
Amendment 276 #
Proposal for a regulation
Article 30 – paragraph 3
Article 30 – paragraph 3
(3) Where, after an in-depth investigation, the Commissioninvestigative authority does not find that an undertaking benefits from a foreign subsidy which distorts the internal market, it shall adopt a decision pursuant to Article 9(4).
Amendment 277 #
Proposal for a regulation
Article 31 – paragraph 2
Article 31 – paragraph 2
(2) If a decision to open an in-depth investigation is taken pursuant to Article 29(3), the contract shall not be awarded to an undertaking submitting a notification under Article 28 until the Commissioninvestigative authority reaches a decision under Article 30(3) or the time limit set in Article 29(4) elapses. If the Commissioninvestigative authority has not adopted a decision within this time limit, the contract may be awarded to any undertaking, including the one submitting the notification.
Amendment 278 #
Proposal for a regulation
Article 31 – paragraph 3
Article 31 – paragraph 3
(3) The contract may be awarded to an undertaking submitting a declaration under Article 28 before the Commissioninvestigative authority takes any of the decisions referred to in Article 30 or before the time limit laid down in Article 29(4) elapses only if the tender evaluation has established that the undertaking in question has in any case submitted the most economically advantageous tender.
Amendment 279 #
Proposal for a regulation
Article 31 – paragraph 4
Article 31 – paragraph 4
(4) Where the Commissioninvestigative authority issues a decision under Article 30(2) regarding the most economically advantageous tender, the contract may be awarded to the undertaking having submitted the next best tender not subject to a decision under Article 30(2).
Amendment 280 #
Proposal for a regulation
Article 31 – paragraph 5
Article 31 – paragraph 5
(5) Where the Commissioninvestigative authority adopts a decision in accordance with Article 30(1) or (3), the contract may be awarded to any undertaking having submitted the most economically advantageous tender, including, as the case may be, the undertaking(s) having submitted the notification under Article 28.
Amendment 281 #
Proposal for a regulation
Article 31 – paragraph 6
Article 31 – paragraph 6
(6) In all cases, the contracting authority or the contracting entity shall inform the Commissioninvestigative authority of any decision relating to the outcome of the public procurement procedure.
Amendment 282 #
Proposal for a regulation
Article 31 – paragraph 8
Article 31 – paragraph 8
(8) Each time limit shall begin on the working day following that of the receipt of the notification or of the adoption of the relevant Commission decisiondecision by the investigative authority.
Amendment 283 #
Proposal for a regulation
Article 32 – paragraph 1
Article 32 – paragraph 1
(1) The Commissioninvestigative authority may impose fines and periodic penalty payments as set out in Article 15.
Amendment 284 #
Proposal for a regulation
Article 32 – paragraph 2
Article 32 – paragraph 2
(2) In addition, the Commissioninvestigative authority may impose by decision on the undertakings concerned fines not exceeding 1 % of their aggregate turnover in the preceding business year, where they intentionally or negligently supply incorrect or misleading information in a notification pursuant to Article 28 or supplement thereto;
Amendment 285 #
Proposal for a regulation
Article 32 – paragraph 3
Article 32 – paragraph 3
(3) The Commissioninvestigative authority may impose by decision on the undertakings concerned fines not exceeding 10 % of their aggregate turnover in the preceding business year where they, intentionally or negligently, fail to notify a subsidy in accordance with Article 28 during the public procurement procedure.
Amendment 287 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
(1) A financial contribution notified in the context of a concentration under Articles 18 and 19 may be relevant and assessed again in relation to another economic activity.
Amendment 289 #
Proposal for a regulation
Article 33 – paragraph 2
Article 33 – paragraph 2
(2) A financial contribution notified in the context of a public procurement procedure under Articles 27 and 28 may be relevant and assessed again in relation to another economic activity.
Amendment 290 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
(1) Where the information available substantiates a reasonable suspicion that foreign subsidies above the thresholds established in this regulation, in a particular sector, for a particular type of economic activity or based on a particular subsidy instrument may distort the internal market, the Commissioninvestigative authority may conduct a market investigation into the particular sector, the particular type of economic activity or into the use of the subsidy instrument concerned. In the course of that market investigation, the Commissioninvestigative authority may request the undertakings or associations of undertakings concerned, as well as the relevant national authorities, to supply the necessary information and may carry out the necessary inspections. The Commission may also request the Member State or third country concerned to supply information.
Amendment 292 #
Proposal for a regulation
Article 34 – paragraph 2
Article 34 – paragraph 2
(2) The Commissioninvestigative authority may publish a report on the results of its market investigation into particular sectors, particular types of economic activity or particular subsidy instruments and invite comments from interested parties.
Amendment 294 #
Proposal for a regulation
Article 34 – paragraph 3
Article 34 – paragraph 3
(3) The Commissioninvestigative authority may use the information obtained from such market investigations in the framework of procedures under this Regulation.
Amendment 296 #
Proposal for a regulation
Article 35 – paragraph 1
Article 35 – paragraph 1
(1) The powers of the Commissionconferred under Article 9 shall be subject to a limitation period of tenfive years, starting on the day on which a foreign subsidy is granted to the undertaking concerned. Any action taken by the Commission under Articles 8, 11, 12 or 13 with respect to a foreign subsidy shall interrupt the limitation period. After each interruption, the limitation period shall start to run afresh.
Amendment 298 #
Proposal for a regulation
Article 35 – paragraph 2
Article 35 – paragraph 2
(2) The powers of the Commission to impose fines and periodic penalty payments under Articles 15, 25 and 32 shall be subject to a limitation period of three years, starting on the day on which the infringement referred to in Articles 15, 25 or 32 took place. In the case of continuing or repeated infringements, the limitation period shall start on the day on which the infringement ceases. Any action taken by the Commissioninvestigative authority with respect to an infringement referred to in Articles 15, 25 or 32 shall interrupt the limitation period for the imposition of fines or periodic penalty payments. After each interruption, the limitation period shall start to run afresh.
Amendment 299 #
Proposal for a regulation
Article 35 – paragraph 3
Article 35 – paragraph 3
(3) The powers of the Commissioninvestigative authority to enforce decisions imposing fines and periodic penalty payments under Articles 15, 25 and 32 shall be subject to a limitation period of five years, starting on the day on which the Commission decision imposing fines or periodic penalty payments was taken. Any action taken by the Commission, or by a Member State acting upon request of the Commission,investigative authority intended to enforce payment of the fine or periodic penalty payment shall interrupt that limitation period. After each interruption, the limitation period shall start to run afresh.
Amendment 300 #
Proposal for a regulation
Article 36 – paragraph 1
Article 36 – paragraph 1
(1) The CommissionEach investigative authority shall publish a summary notice of the decisions adopted pursuant to Article 8(2).
Amendment 301 #
Proposal for a regulation
Article 36 – paragraph 2
Article 36 – paragraph 2
(2) The CommissionEach investigative authority shall publish the decisions adopted pursuant to Article 9(2), (3) and (4), Article 24(3), and Article 30(1), (2) and (3) in the Official Journal of the European Union.
Amendment 302 #
Proposal for a regulation
Article 36 – paragraph 2 a (new)
Article 36 – paragraph 2 a (new)
(2 a) The Commission shall publish either in full or in a summary form all decisions adopted by the different investigative authorities.
Amendment 303 #
Proposal for a regulation
Article 36 – paragraph 3
Article 36 – paragraph 3
(3) When publishing summary notices and decisions, the Commission shall take due account of the legitimate interests of undertakings in the protection of their business secrets and other confidential information shall be taken.
Amendment 304 #
Proposal for a regulation
Article 37 – paragraph 1
Article 37 – paragraph 1
(1) Decisions adopted pursuant to Articles 8, 9, 15, 24(3), 25, 30(1) and 32 shall be addressed to the undertakings or to the association of undertakings concerned. The Commissioninvestigative authority shall notify the decision to the addressee without delay and shall give the addressee the opportunity to indicate to the Commission which information it considers to be confidential. The Commissioninvestigative authority shall provide the contracting authority or the contracting entity concerned with a copy of any Commission decision it addressed to an undertaking participating in a public procurement procedure.
Amendment 305 #
(2) Decisions adopted pursuant to Article 30(2) and (3) shall be addressed to the contracting authority or the contracting entity concerned. The Commissioninvestigative authority shall provide the undertaking to which the award of the public contract is prohibited with a copy of that decision.
Amendment 306 #
Proposal for a regulation
Article 38 – paragraph 1
Article 38 – paragraph 1
(1) The Commissioninvestigative authority shall, before adopting a decision pursuant to Articles 9, 15, 24(3) point (c), 25, 30(2) or 32 give the undertaking concerned the opportunity to submit observations on the grounds on which the Commisa decision intends to be adopt its decisioned.
Amendment 307 #
Proposal for a regulation
Article 38 – paragraph 2
Article 38 – paragraph 2
(2) The Commissioninvestigative authority shall base its decision only on grounds on which the undertakings concerned have been given the opportunity to submit their observations.
Amendment 308 #
Proposal for a regulation
Article 42 – paragraph 1 – point e
Article 42 – paragraph 1 – point e
Amendment 309 #
Proposal for a regulation
Article 42 – paragraph 1 – point f
Article 42 – paragraph 1 – point f
Amendment 310 #
Proposal for a regulation
Article 42 – paragraph 1 – point g
Article 42 – paragraph 1 – point g
Amendment 311 #
Proposal for a regulation
Article 44 – paragraph 1 – point a
Article 44 – paragraph 1 – point a
Amendment 313 #
Proposal for a regulation
Article 44 – paragraph 1 – point b
Article 44 – paragraph 1 – point b
Amendment 314 #
Proposal for a regulation
Article 44 – paragraph 1 – point c
Article 44 – paragraph 1 – point c
Amendment 316 #
Proposal for a regulation
Article 44 – paragraph 1 – point c a (new)
Article 44 – paragraph 1 – point c a (new)
(c a) determining the structure of a communication network between the different competent authorities;
Amendment 317 #
Proposal for a regulation
Article 44 – paragraph 1 – point c b (new)
Article 44 – paragraph 1 – point c b (new)
(c b) establishing detailed rules on the calculation of time limits;
Amendment 318 #
Proposal for a regulation
Article 44 – paragraph 1 – point c c (new)
Article 44 – paragraph 1 – point c c (new)
(c c) determining the conditions and time limits for proposing commitments under Article 30;
Amendment 319 #
Proposal for a regulation
Article 44 – paragraph 1 – point c d (new)
Article 44 – paragraph 1 – point c d (new)
Amendment 320 #
Proposal for a regulation
Article 44 – paragraph 1 – point c e (new)
Article 44 – paragraph 1 – point c e (new)
(c e) specifying the application of the balancing tool outlined in Article 5.
Amendment 325 #
Proposal for a regulation
Article 46 – paragraph 1
Article 46 – paragraph 1
Amendment 327 #
Proposal for a regulation
Article 47 – paragraph 1
Article 47 – paragraph 1
(1) This Regulation shall apply to foreign subsidies granted in the tenfive years prior to the date of application of this Regulation where such foreign subsidies distort the internal market after the start of application of this Regulation.