Activities of Eugen JURZYCA 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 (52)
Amendment 29 #
Proposal for a regulation
Recital 3
Recital 3
(3) Foreign subsidies can distort the internal market and undermine the level playing field for various economic activities in the Union. This could in particular occur in the context of concentrations entailing a change of control over Union undertakings, where such concentrations are fully or partially financed through foreign subsidies, or if undertakings benefiting from foreign subsidies are awarded public contracts in the Union in sectors with low competition level or high risk of distortion. The financial contributions provided by the signatories of the WTO Agreement on Government Procurement should not be considered as distortive, and should therefore not trigger the notification obligation.
Amendment 33 #
Proposal for a regulation
Recital 8
Recital 8
(8) Foreign subsidy in the context of this Regulation should be understood as an intervention that meets threeall cumulative conditions.
Amendment 34 #
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 may also be granted through a private entity if its actions can be attributed to the third country. The financial contribution granted by the signatories of the WTO Agreement on Government Procurement should not be considered as distorting the internal market, as those countries meet relevant standards of open rules-based economies.
Amendment 41 #
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. The Commission should transparently publish the measurable indicators, which are considered in the assessment.
Amendment 42 #
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. 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 Commission could have regard to certain indicators. The indicators should be quantifiable so that they provide reasonable evidence of distortion by foreign subsidies, 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 44 #
Proposal for a regulation
Recital 15
Recital 15
(15) Like certain types of State aid, also certain categories of foreign subsidies, such as unlimited guarantees, are likely to create distortions in the internal market because of their nature. Those categories should not require a detailed assessment based on indicators. An undertaking could in any event show that the foreign subsidy in question would not distort the internal market in the specific circumstances of the case.
Amendment 49 #
Proposal for a regulation
Recital 19 a (new)
Recital 19 a (new)
(19a) The remedy should not, in any case, impose upon undertakings to provide, disclose or publish the business secret and intellectual property such as patents. The protection of such confidential information should be respected.
Amendment 50 #
Proposal for a regulation
Recital 21
Recital 21
Amendment 53 #
Proposal for a regulation
Recital 26
Recital 26
(26) The Commission 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 Commission should have the power to impose fines and periodic penalty payments. The Commission should review the effectiveness of the measures.
Amendment 55 #
Proposal for a regulation
Recital 31
Recital 31
(31) Below the notification thresholds, the Commission 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 Commission should also have the possibility to carry out a review on its own initiative of already implemented concentrations or awarded public contracts.
Amendment 56 #
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 Commission 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 athe combined thresholds 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 athe combined thresholds 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. The undertakings that did not receive any foreign financial contributions should not be obliged to submit a notification. No notification means that the undertaking declares not to have received foreign contribution in the last three years automatically. This should limit the administrative burden on undertakings, which did not receive foreign financial contributions. The same rule of no mandatory notification should apply also for undertakings, which receive the foreign financial contribution below the thresholds set out in this Regulation. _________________ 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 60 #
Proposal for a regulation
Recital 34 a (new)
Recital 34 a (new)
(34a) In order to provide legal certainty and to streamline the public procurements, the undertaking should be able to request the assessment of foreign financial contributions on its own initiative.
Amendment 62 #
Proposal for a regulation
Recital 36
Recital 36
(36) Foreign subsidies that enable an undertaking to submit a tender which is unduly advantageous in relation to the works, supplies or services concerned should be deemed to actually or potentially create a distortion in a public procurement procedure. Those distortions should therefore be assessed on the basis of the non-exhaustive set of indicators described in recitals 13 and 14publicly available set of measurable indicators as well as the notion of unduly advantageous tender. The indicators should allow to determine how the foreign subsidy distorts competition by improving the competitive position of an undertaking and enabling it to submit an unduly advantageous tender. The opportunity should be given to undertakings to justify that the tender is not unduly advantageous, including by adducing the elements referred to in Article 69(2) of Directive 2014/24/EU. The prohibition of the award should only apply where the advantageous nature of the tender benefiting from foreign subsidies cannot be justified, the tender would be awarded the contract and the undertaking submitting the tender did not offer commitments considered appropriate and sufficient to fully and effectively remove the distortion.
Amendment 64 #
Proposal for a regulation
Recital 44
Recital 44
(44) Restrictions to Articles 34, 49, 56 and 63 of the Treaty can be justified by the need to avoid unfair competition, provided that such restrictions, like other restrictions of fundamental freedoms comply with the general principles of Union law, such as proportionality, legal certainty, and with fundamental rights.
Amendment 65 #
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 consumers and consumers' welfare. 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 70 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
(2) This Regulation addresses distortive foreign subsidies granted 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 72 #
Proposal for a regulation
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
(1) A distortion on the internal market shall be deemed to exist where a direct causal link between the distortion identified and the subsidies received exists and where a foreign subsidy is liable to improve the competitive position of the undertaking concerned in the internal market and where, in doing so, the investigation provides evidence that it actually or potentially negatively affects competition on the internal market. Whether there is a distortion on the internal market shall be determined on the basis of indicators, which may include the following:
Amendment 74 #
Proposal for a regulation
Article 3 – paragraph 1 – point d
Article 3 – paragraph 1 – point d
Amendment 76 #
Proposal for a regulation
Article 3 – paragraph 1 – point e a (new)
Article 3 – paragraph 1 – point e a (new)
(ea) market concentration in the market concerned, including short and medium-term trends; (eb) the frequency of economic activity or public procurement tenders in the internal markets;
Amendment 79 #
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 (aa) the market concentration on the relevant market is low or the market is contestable and the trend over the last 5 years does not indicate worsening the level of concentration; or (ab) 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 84 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
(2a) By 30 June 2023, the Commission shall publish the 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 86 #
Proposal for a regulation
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
Amendment 88 #
Proposal for a regulation
Article 4 – paragraph 1 – point 4
Article 4 – paragraph 1 – point 4
(4) a foreign subsidy enabling an undertaking to submit an unduly advantageous tender with the evidence based negative effect on the internal market, on the basis of which the undertaking would be awarded the public contract in the low competitive or not contestable markets: (a) characterised by structural excess capacity; (b) characterised by high share of the state-owned companies on the global relevant market; (c) provided by third countries not signatories of the WTO Agreement on Government Procurement, unless the Commission publish the evaluation for excluding such country from the list.
Amendment 96 #
Proposal for a regulation
Article 6 – paragraph 2
Article 6 – paragraph 2
(2) Commitments or redressive measures shall fully and effectively remedy the distortion caused by the foreign subsidy in the internal market. Redressive measures shall exclusively remedy the distortion caused by the foreign subsidy.
Amendment 100 #
Proposal for a regulation
Article 6 – paragraph 3 – point e
Article 6 – paragraph 3 – point e
(e) publication of a summary of results of research and development; . The protection of business secrets and other confidential information such as intellectual property rights shall be respected and the Commission shall not require undertakings to provide or disclose such information;
Amendment 106 #
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 Commission mayshall accept them and make them binding on the undertaking in a decision with commitments according to Article 9(3). By 30 June 2023, the Commission shall adopt a delegated act to set the procedures, methodology and criteria to determine the specific commitments and regressive measures according to this Regulation.
Amendment 115 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
(1) The Commission may conduct the necessary inspections of undertakings when a distortion is clearly identified.
Amendment 119 #
Proposal for a regulation
Article 12 – paragraph 2 – point a
Article 12 – paragraph 2 – point a
(a) to enter relevanyt premises and land of the undertaking concerned;
Amendment 120 #
Proposal for a regulation
Article 12 – paragraph 2 – point d
Article 12 – paragraph 2 – point d
Amendment 121 #
Proposal for a regulation
Article 12 – paragraph 3 – introductory part
Article 12 – paragraph 3 – introductory part
(3) The undertaking concerned shall submit to inspections ordered by decision of the Commission. The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a Commission decision to the undertaking concerned:
Amendment 122 #
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;, purpose and limits 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 125 #
Proposal for a regulation
Article 12 – paragraph 7
Article 12 – paragraph 7
(7) Upon request of the Commission, a Member State shallmay in its own territory carry out any inspection or other fact- finding measure under its national law in order to establish whether there is a foreign subsidy distorting the internal market.
Amendment 128 #
Proposal for a regulation
Article 26 – paragraph 1
Article 26 – paragraph 1
Foreign subsidies that cause or very likely risk causing a distortion in a public procurement procedure shall be understood as foreign subsidies that enable an undertaking to submit a tender that is unduly advantageous in relation to the works, supplies or services concerned. The assessment of whether there is a distortion on the internal market pursuant to Article 3 and whether a tender is unduly advantageous in relation to the works, supplies or services concerned shall be limited to the public procurement procedure at stake. Only foreign subsidies granted during the three years prior to the notification shall be taken into account in the assessment.
Amendment 131 #
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: (a) the estimated value of that public procurement is equal or greater than EUR 250 million; and (b) the total value of provided foreign subsidies to an undertaking is equal to or above EUR 1,5 million.
Amendment 139 #
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 contributionsubsidies 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 unless their total value for one undertaking is lower than EUR 1,5 million. Undertakings reaching the last three years. Undertakings which do not submit such information or declaration shall not be awarded the contracttotal volume of foreign subsidies according to the previous sentence which do not submit such information 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 147 #
Proposal for a regulation
Article 28 – paragraph 3
Article 28 – paragraph 3
(3) ForThe groups of economic operators, main subcontractors and main suppliers, the lead economic operator shall ensure notification shall notify foreign financial contributions separately. The undertaking, economic operators or groups of economic operators shall not be liable for information about and provided by their main subcontractors or main suppliers.
Amendment 148 #
Proposal for a regulation
Article 28 – paragraph 6
Article 28 – paragraph 6
(6) Where the Commission suspects that an undertaking may have benefitted from foreign subsidies of total value of EUR 1,5 million or more 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 Commission has requested the notification of such a financial contribution, it is deemed to be a notifiable foreign financial contribution in a public procurement procedure, at any time before the award of the contract.
Amendment 155 #
Proposal for a regulation
Article 28 a (new)
Article 28 a (new)
Article 28a Own initiative request for the assessment of foreign subsidies 1. The Commission shall carry out the assessment of foreign subsidies upon own initiative request of the undertaking, which plans to apply for the public procurement. 2. The Commission shall carry out the assessment based on 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 the Guidelines providing details and procedure on how to request the assessment of foreign subsidies, including possible fees.
Amendment 157 #
Proposal for a regulation
Article 29 – paragraph 2
Article 29 – paragraph 2
(2) The Commission shall carry out a preliminary review no later than 620 days after it received the notification.
Amendment 159 #
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 20 days, the foreign subsidies shall be deemed as not distorting the internal market.
Amendment 162 #
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 2060 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 166 #
Proposal for a regulation
Article 30 – paragraph 1
Article 30 – paragraph 1
(1) Where, after an in-depth investigation, the Commission 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. By 30 June 2023, the Commission shall adopt a delegated act defining the indicators and procedures for the assessment under Article 5. Such procedures shall be transparent and publicly available.
Amendment 169 #
Proposal for a regulation
Article 30 – paragraph 3 a (new)
Article 30 – paragraph 3 a (new)
(3a) 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 172 #
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 173 #
Proposal for a regulation
Article 31 – paragraph 3 a (new)
Article 31 – paragraph 3 a (new)
(3a) The relevant authority shall carry out the assessment of the most economically advantageous tender no later than 20 days after submitting a declaration under Article 28.
Amendment 180 #
Proposal for a regulation
Article 32 – paragraph 2
Article 32 – paragraph 2
(2) In addition, the Commission 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 185 #
Proposal for a regulation
Article 32 – paragraph 3
Article 32 – paragraph 3
(3) The Commission 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 187 #
Proposal for a regulation
Article 34
Article 34
Amendment 195 #
Proposal for a regulation
Article 44 – paragraph 1 – point b a (new)
Article 44 – paragraph 1 – point b a (new)
(ba) criteria to determine the specific commitments and regressive measures in Article 6 (5);
Amendment 197 #
Proposal for a regulation
Article 44 – paragraph 1 – point c a (new)
Article 44 – paragraph 1 – point c a (new)
(ca) defining specific indicators for balancing set out in the delegated act in Article 30(1).
Amendment 199 #
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. evidences prove so, by relevant legislative proposals. The report shall quantify the impacts, it may consider the Total Net Present Social Value and Business Net Present Value. The report shall cover at least the following areas: (a) analysis of impacts on the foreign direct investments in the Union, including the analysis of countries structure and trends; (b) analysis of number of bidders in the public procurements and average length of public procurements, including the trend over years; (c) analysis of the criteria and procedures for the assessment of the most economically advantageous tender set out in Article 31 (3); (d) analysis of criteria and procedures to identify the most distortive subsidies, analysis of notification obligations and whether these subsidies in practice triggered the highest risk for the internal market; (e) ex-post analysis of fines and penalties imposed and their effectiveness; (f) ex-ante analysis of impact of the Regulation on the consumer welfare, including short-term and long term impacts; (g) ex-post and ex-ante cost-benefit analysis of the Regulation; Quantifiable measurable indicators that would confirm that the proposed regulation brings more benefit than costs; (h) analysis of compliance costs of companies, comparison with the expected costs in the impact assessment; (i) ex-post review of the costs and benefits stated in the impact assessment, analysis of the deviations; (j) analysis of the retaliatory measures in third countries, if applicable their impact on the consumer and internal market; (k) the analysis of incorrect, incomplete or misleading information provided, split by whether they intentionally or negligently supply incorrect or misleading information in a notification pursuant to Article 28 and the analysis whether the Regulation is clear and provides necessary guidelines.
Amendment 202 #
Proposal for a regulation
Article 46 – paragraph 1 a (new)
Article 46 – paragraph 1 a (new)
This regulation shall expire by 30 June 2029. However, it shall expire by 30 June 2023 if the delegated act stipulated in Article 30(1), and guidelines stipulated in articles 3(3), 28a(3) and 31(3) were not issued within that period.