Activities of Geert BOURGEOIS related to 2021/0114(COD)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council on foreign subsidies distorting the internal market
Amendments (34)
Amendment 76 #
Proposal for a regulation
Recital 9
Recital 9
(9) There should be a financial contribution or any other advantage provided, directly or indirectly, by the public authorities of a third country. The financial contribution or advantage may be granted through public or private entities. Whether a public entity provides a financial contribution or advantage 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 or advantages may also be granted through a private entity if its actions can be attributed to the third country.
Amendment 80 #
Proposal for a regulation
Recital 10
Recital 10
(10) Such a financial contribution or advantage should confer a benefit to an undertaking engaging in an economic activity in the internal market. A financial contribution or advantage that benefits an entity engaging in non- economic activities does not constitute a foreign subsidy. The existence of a benefit should be determined on the basis of comparative benchmarks, such as the investment practice of private investors, rates for financing obtainable on the market, a comparable tax treatment, or the adequate remuneration for a given good or service.. If no directly comparable benchmarks are available, existing benchmarks could be adjusted or alternative benchmarks could be established based on generally accepted assessment methods.
Amendment 158 #
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 undertakings 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 contributions in the context of a public procurement procedure. In relation 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 SMEs. It is of particular importance that the Commission carries out analysis during the preparations of those acts, mainly including the quantified cost- benefit analysis and ex-ante analysis on impact on investments and consumers welfare. It is also 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 165 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
(2) This Regulation addresses foreign subsidies granted conferring an advantage to an undertaking engaging in an economic activity in the internal market. 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 166 #
Proposal for a regulation
Article 2 – paragraph 1
Article 2 – paragraph 1
(1) For the purpose of this Regulation, a foreign subsidy shall be deemed to exist where a third country provides a financial contribution or any other advantage which confers a benefit to an undertaking engaging in an economic activity in the internal market and which is limited, in law or in fact, to an individual undertaking or industry or to several undertakings or industrie, including any commercial interaction with a public or private operator, regardless of the place where the commercial interaction occurs and which is limited, in law or in fact, to an individual undertaking or industry or to several undertakings or industries. Such advantage is deemed to exist from the moment it first causes a distortion, even if prior to the beneficiary's actual receipt of, or full entitlement to, the advantage. This can occur, for example, if the advantage is conditional or if there is a pattern of advantages granted to such a beneficiary in similar situations.
Amendment 173 #
Proposal for a regulation
Article 2 – paragraph 2 – point a – introductory part
Article 2 – paragraph 2 – point a – introductory part
(a) a financial contribution shall include, in a non-exhaustive manner:
Amendment 175 #
Proposal for a regulation
Article 2 – paragraph 2 – point a – point i
Article 2 – paragraph 2 – point a – point i
(i) the transfer of funds or liabilities, such as capital injections, grants, loans, loan guarantees, fiscal incentives, tax exemptions, setting off of operating losses, compensation for financial burdens imposed by public authorities, debt forgiveness, debt to equity swaps or rescheduling;
Amendment 180 #
Proposal for a regulation
Article 2 – paragraph 2 – point a – point iii a (new)
Article 2 – paragraph 2 – point a – point iii a (new)
(iii a) any financial advantage in any form whatsoever funded directly or indirectly through state resources of the third country;
Amendment 186 #
Proposal for a regulation
Article 2 – paragraph 2 – point b – introductory part
Article 2 – paragraph 2 – point b – introductory part
(b) the financial contribution or any other advantage provided by the third country shall include the financial contribution or advantage provided by:
Amendment 192 #
Proposal for a regulation
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
(2 a) For the purpose of this Regulation, other financial and competitive advantages shall be deemed to exist when: (i) financial relations with public undertakings are not structured at arms’ length or are not in line with normal market conditions in the market concerned;or (ii) exclusive or special rights have been granted explicitly or de facto to one or more undertakings who subsequently leverage those exclusive or special rights by off-setting costs or losses incurred on the European internal market by increased turnover or profits on the captive markets where those exclusive or special rights apply.
Amendment 195 #
Proposal for a regulation
Article 2 – paragraph 2 b (new)
Article 2 – paragraph 2 b (new)
(2 b) For the purpose of this Regulation, where the Commission has well-founded evidence of the existence of significant distortions in a third country or a sector in a third country, public undertakings from this country, which are directly or indirectly state owned or controlled, shall be presumed having received distortive foreign subsidies in the absence of proof of the contrary.
Amendment 206 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
(2) A foreign subsidy is unlikely to distort the internal market if: (a) its total amount is below EUR 5 million over any consecutive period of three fiscal years, or (b) the foreign subsidy is granted by the third country, which has in place a legislative measure for the review of subsidies that guarantee the equivalent level of competition protection. By 30 June 2023, the Commission shall publish the list of such countries. This list shall be regularly reviewed.
Amendment 212 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
(2 a) By 30 June 2023, the Commission shall publish guidelines providing further examples and clarification on how each indicator of distortion will be applied, including the types and purposes of subsidies that cause distortion in the internal market. The guidelines shall be regularly updated.
Amendment 216 #
Proposal for a regulation
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
(2 b) By 30 June 2023 the Commission shall publish a report on the possibility of introduction of an online tool for the indicative assessment of foreign subsidies, stating the risk level which is expected based on the provided data for quantitative indicators.
Amendment 234 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
(1) The Commission shall, where warranted, 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 the objectives of Union policies in the field concerned.
Amendment 239 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
(2) The Commission 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. The general objective of tackling distortions created by foreign subsidies, in particular those which may endanger the preservation of a strong industrial base in the Union with sustainable and diversified supply chains, should be given special consideration.
Amendment 255 #
Proposal for a regulation
Article 6 – paragraph 3 – introductory part
Article 6 – paragraph 3 – introductory part
(3) Commitments or redressive measures may consist of the following non-exhaustive list: :
Amendment 268 #
(5) If an undertaking offers commitments which fully and effectively remedy the distortion on the internal market, the Commission mayshall accept them and make them binding on the undertaking in a decision with commitments according to Article 9(3).
Amendment 273 #
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 Commission shallmay 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 279 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
The Commission may on its own initiative or upon request examine information from any source regarding alleged distortive foreign subsidies, including a Member State concerned and undertakings or their respective trade associations, regarding alleged distortive foreign subsidies. The Commission shall provide information once a Member State concerned or undertakings or their respective trade associations have submitted a request justifying the initiation of an investigation and the Commission has completed its analysis thereof, or where the Commission has itself determined that there is a need to initiate an investigation.
Amendment 294 #
Proposal for a regulation
Article 8 – paragraph 2 – point c a (new)
Article 8 – paragraph 2 – point c a (new)
(c a) hear the interested parties which have made a written request within the period prescribed in the notice published in the Official Journal of the European Union showing that they are an interested party likely to be affected by the result of the proceedings and that there are particular reasons why they should be heard.
Amendment 308 #
Proposal for a regulation
Article 10 – paragraph 1 – introductory part
Article 10 – paragraph 1 – introductory part
The Commission may take interim measures, including during the preliminary review period, where:
Amendment 338 #
Proposal for a regulation
Article 12 – paragraph 3 – point a
Article 12 – paragraph 3 – point a
(a) specifying the subject matter and purpose of the inspection; The subject matter and the scope of the inspection shall be proportionate and include minimum tasks necessary to confirm foreign subsidies and their distortive effect on the internal market.
Amendment 404 #
Proposal for a regulation
Article 24 – paragraph 2
Article 24 – paragraph 2
(2) The Commission may initiate an in- depth investigation under Article 8(2) no later than 25 working days after receipt of the complete notification and shall publish a notice of formal investigation in the Official Journal of the European Union, which invites interested parties, Member States and the third country concerned to express their views in writing within a prescribed period of time. The interested parties which have made themselves known shall be heard if they have, within the period prescribed in the notice published in the Official Journal of the European Union, made a written request for a hearing showing that they are an interested party likely to be affected by the result of the proceedings and that there are particular reasons why they should be heard.
Amendment 430 #
Proposal for a regulation
Article 28 – paragraph 1
Article 28 – paragraph 1
(1) When submitting a tender or a request to participate in a public procurement procedure, undertakings, main subcontractors and main suppliers shall either notify to the contracting authority or the contracting entity all foreign financial contributions received in the three years preceding that notification or confirm in a declaration that they did not receive any foreign financial contributions in the last three years. Undertakings which do not submit such information or declaration shall not be awarded the contract. Any subcontractor or main supplier selected or known after submitting a tender or a request to participate in a public procurement procedure shall notify foreign subsidies according to the first sentence without undue delay after their selection.
Amendment 448 #
Proposal for a regulation
Article 28 a (new)
Article 28 a (new)
Article 28 a Own initiative request for the assessment of foreign subsidies 1. The Commision shall carry out an assessment of foreign subsidies upon an own-initiative request of the undertaking which plans to apply for the public procurement. 2. The Commission shall carry out the assessment based on the rules set in this Regulation. The undertaking concerned may withdraw from the request for the assessment. 3. By 30 June 2023, the Commission shall publish guidelines providing details and procedure on how to request the assessment of foreign subsidies, including possible fees.
Amendment 455 #
Proposal for a regulation
Article 29 – paragraph 2
Article 29 – paragraph 2
(2) The Commission shall carry out a preliminary review no later than 640 days after it received the notification.
Amendment 456 #
Proposal for a regulation
Article 29 – paragraph 3
Article 29 – paragraph 3
(3) The Commission 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 delay. Where the Commission has not taken a decision to initiate an in-depth investigation within 40 days, the foreign subsidies shall be deemed as not distorting the internal market.
Amendment 462 #
Proposal for a regulation
Article 29 – paragraph 4
Article 29 – paragraph 4
(4) The Commission may adopt a decision closing the in-depth investigation no later than 1200 days after it received the notification. In exceptional circumstances, this time limit may be extended after consultation with the concerned contracting authority or contracting entityby a maximum of 60 additional days.
Amendment 469 #
Proposal for a regulation
Article 30 – paragraph 3 a (new)
Article 30 – paragraph 3 a (new)
(3 a) The Commission shall publish the decisions, which shall indicate inter alia the thorough explanation of the decision, quantified indicators on which the decision is based and the right and the time limit of the undertaking to have the decision reviewed by the Court of Justice of the European Union.
Amendment 473 #
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 Commission 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. By 30 June 2023, the Commission shall publish the guidelines providing the criteria and procedure for the assessment of the most economically advantageous tender.
Amendment 523 #
Proposal for a regulation
Article 46 – paragraph 1
Article 46 – paragraph 1
Within fivthree years after the entry into force of this Regulation atnd the latestn each three years, the Commission shall present a report to the European Parliament and the Council on the application of this Regulation, accompanied, where the Commission considers it appropriate, by relevant legislative proposals.
Amendment 529 #
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.
Amendment 533 #
Proposal for a regulation
Article 48 – paragraph 2
Article 48 – paragraph 2
It shall apply from [date: sixnine months after entry into force].