21 Amendments of Iuliu WINKLER related to 2021/0114(COD)
Amendment 93 #
Proposal for a regulation
Recital 16
Recital 16
(16) The Commission should takeseek a common European interest when taking 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 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. The Commission should develop guidelines with regard to the application of the balancing test.
Amendment 106 #
Proposal for a regulation
Recital 21
Recital 21
(21) The Commission should have the power, on its own initiative, to examine any 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. The Commission shall publish guidance on the criteria to open such a procedure.
Amendment 127 #
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. The Commission shall provide instructions on the requirements that must be met in order receive such a notification.
Amendment 131 #
Proposal for a regulation
Recital 32
Recital 32
(32) When reviewing a concentration, the assessment of whether there is a distortion in the internal market should be limited to the concentration at stake, and only foreign subsidies granted in the threfive years prior to the concentration should be considered in the assessment.
Amendment 162 #
Proposal for a regulation
Recital 49
Recital 49
(49) Where a concentration is notifiable pursuant to this Regulation, financial contributions to any of the parties to the concentration granted in the threfive years prior to the date of application of this Regulation should fall within the scope of this Regulation. In the context of a public procurement procedure, this Regulation should also apply to a financial contribution granted to an undertaking in the threfive years prior to the date of application of this Regulation,
Amendment 210 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
(2) A foreign subsidy is unlikely to distort the internal market if its total amount is below EUR 5 million over any consecutive period of threfive fiscal years.
Amendment 240 #
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 Commission will publish guidance on how to perform the balancing exercise by the date of application of this Regulation.
Amendment 301 #
Proposal for a regulation
Article 8 – paragraph 3 a (new)
Article 8 – paragraph 3 a (new)
(3 a) The Commission will set out the criteria to open such a procedure by the date of application of this Regulation.
Amendment 376 #
Proposal for a regulation
Article 18 – paragraph 3 – point b
Article 18 – paragraph 3 – point b
(b) all the undertakings concerned received from third countries an aggregate financial contribution in the three calendar years prior to notification of more than EUR 50 million.
Amendment 392 #
Proposal for a regulation
Article 19 – paragraph 5
Article 19 – paragraph 5
(5) The Commission may request the prior notification of any concentration which is not a notifiable concentration within the meaning of Article 18 at any time prior to its implementation where the Commission suspects that the undertakings concerned may have benefitted from foreign subsidies in the threfive years prior to the concentration. That concentration shall be deemed to be a notifiable concentration for the purposes of this Regulation. The Commission shall publish the instructions on the requirements that must be met in order to receive such a notification by the date of application of this Regulation.
Amendment 413 #
Proposal for a regulation
Article 25 – paragraph 2
Article 25 – paragraph 2
(2) In addition, the Commission may impose by decision on undertakings concerned fines not exceeding 1 % of their aggregate turnover produced by the undertaking concerned in the preceding business year where they, intentionally or negligently, supply incorrect or misleading information in a notification pursuant to Article 19 or supplement thereto.
Amendment 414 #
Proposal for a regulation
Article 25 – paragraph 3 – introductory part
Article 25 – paragraph 3 – introductory part
(3) The Commission may impose by decision on undertakings concerned fines not exceeding 10 % of their aggregate turnover produced by the undertaking concerned in the preceding business year where they, intentionally or negligently:
Amendment 417 #
Proposal for a regulation
Article 26 – paragraph 1
Article 26 – paragraph 1
Foreign subsidies that cause or 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 threfive years prior to the notification shall be taken into account in the assessment.
Amendment 425 #
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, calculated in accordance with the provisions laid down in Article 5 of Directive 2014/24/EU and Article 16 of Directive 2014/25/EU, is equal or greater than EUR 250 million.
Amendment 431 #
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 shall either notify to the contracting authority or the contracting entity all foreign financial contributions received in the three calendar years preceding that notification or confirm in a declaration that they did not receive any foreign financial contributions in the last three yearscalendar years. A calendar year begins on January 1st and finishes on December 31st of the same year, and corresponds to the criterion to assess the validity of the declaration notified by the undertaking. Undertakings which do not submit such information or declaration shall not be awarded the contract.
Amendment 434 #
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 30% of the estimated value of the contract.
Amendment 442 #
Proposal for a regulation
Article 28 – paragraph 5 a (new)
Article 28 – paragraph 5 a (new)
(5 a) When the foreign subsidy was granted to a subcontractor who had not notified it to the lead operator, its substitution by the lead operator shall be sufficient to prevent the Commission’s review from being opened.
Amendment 445 #
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 in the threfive 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. The Commission shall publish guidance on the criteria to require such a notification by the date of application of this Regulation.
Amendment 464 #
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 20150 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 478 #
Proposal for a regulation
Article 31 – paragraph 6 a (new)
Article 31 – paragraph 6 a (new)
(6 a) Whenever contracting authorities make use of qualification systems complying to Article 77 of Directive 2014/25/EU, the undertaking’s obligation to notify the foreign subsidy received is observed at the qualification stage with reference to the previous three calendar years with respect to the qualification system and has a temporary validity of three calendar years after which it is necessary to provide an update of the notification.
Amendment 502 #
Proposal for a regulation
Article 40 – paragraph 7
Article 40 – paragraph 7
(7) An investigation pursuant to this Regulation shall not be carried out and measures shall not be imposed or maintained where such investigation or measures would be contrary to the Union’s obligations emanating from any relevant international agreement it has entered into. In particular, no action shall be taken under this Regulation which would amount to a specific action against a subsidy within the meaning of Article 32.1 of the Agreement on Subsidies and Countervailing Measures, except where the country granting the subsidy is not a WTO Member or where the Commission has well-founded indications that the country granting the subsidy is in substantial non-compliance with notification obligations under the Agreement or under other international agreements, at least with regard to the sector concerned. Provided that, regardless of the sector involved, actions may always be taken under this Regulation in relation to foreign subsidies which cause distortions on the internal market in public procurement procedures or in relation to concentrations. This Regulation shall not prevent the Union from exercising its rights or fulfilling its obligations under international agreements.