35 Amendments of Anna CAVAZZINI related to 2021/0114(COD)
Amendment 36 #
Proposal for a regulation
Recital 9 a (new)
Recital 9 a (new)
(9a) With the view to ensuring a fair level-playing field in the internal market, this Regulation should focus not only on financial contributions to the benefit of undertakings but also on receiving advantages that can be economically equivalent to a financial contribution. A wide-definition of foreign subsidy should therefore encompass cases where a third country fails to comply with minimum environmental, social and labour standards that are ratified under international conventions, thereby giving a competitive advantage to some undertakings;
Amendment 39 #
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. This assessment should balance the short and long- term 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 including any positive environmental or social externalities in the third country providing the subsidy. 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.
Amendment 43 #
Proposal for a regulation
Recital 14
Recital 14
(14) When applying these indicators, the Commission 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 59 #
Proposal for a regulation
Recital 34
Recital 34
Amendment 61 #
Proposal for a regulation
Recital 36
Recital 36
(36) Foreign subsidies that enable an undertaking to submit a tender which is unduly advantageous, i.e. abnormally low tenders pursuant to Directive 2014/24/EU, 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 14 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.In this regard, non-compliance with international environmental, social and labour conventions by an undertaking should constitute an advantage economically equivalent to a financial contribution that has a distortive effect on competition resulting in an uneven level- playing field. The prohibition of the award should only apply where the advantageous nature of the tender benefiting from foreign subsidies cannot be justified
Amendment 67 #
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 redressing such distortions with a view to ensuring a fair level-playing field in the internal market. Such distortions may arise with respect to any economic activity, and in particular in concentrations and public procurement procedures.
Amendment 73 #
Proposal for a regulation
Article 3 – paragraph 1 – point b
Article 3 – paragraph 1 – point b
(b) the nature of the subsidy, including an advantage that is economically equivalent to a financial contribution;
Amendment 75 #
Proposal for a regulation
Article 3 – paragraph 1 – point e a (new)
Article 3 – paragraph 1 – point e a (new)
(ea) with reference to point (b), an advantage that is economically equivalent to financial contribution shall include policy measures enacted in a third country such as inadequately remunerated special or exclusive rights or a failure to comply with relevant minimum binding international environmental, social and labour requirements that are ratified in the legal international order.
Amendment 80 #
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 millionthe de minimis threshold rule laid down in Commission Regulation N°1407/2013 over any consecutive period of three fiscal years.
Amendment 85 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
(2a) The Commission is empowered to adopt a delegated act to update the indicators referred to in paragraph 1.
Amendment 89 #
Proposal for a regulation
Article 4 – paragraph 1 – point 4
Article 4 – paragraph 1 – point 4
(4) a foreign subsidy or an advantage economically equivalent to a financial contribution enabling an undertaking to submit an unduly advantageous tender or abnormally low tender pursuant to Directive2014/24/EU, on the basis of which the undertaking would be awarded the public contract.
Amendment 94 #
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 Commission mayshall impose redressive measures unless the balancing test pursuant to Article 5 has demonstrated that positive effects outweighs negative ones, including any positive environmental or social externalities in the third country granting the subsidy. The undertaking concerned may also offer commitments.
Amendment 101 #
Proposal for a regulation
Article 6 – paragraph 3 – point h a (new)
Article 6 – paragraph 3 – point h a (new)
(ha) excluding the undertaking from procurement procedures for a certain period of time when it is demonstrated that the undertaking has received distortive foreign subsidies or an advantage that is economically equivalent to a financial contribution that results in submission of abnormally low tenders.
Amendment 104 #
Proposal for a regulation
Article 6 – paragraph 4
Article 6 – paragraph 4
(4) The Commission mayshall impose reporting and transparency requirements.
Amendment 116 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
(1) The Commission mayshall conduct the necessary inspections of undertakings.
Amendment 124 #
Proposal for a regulation
Article 12 – paragraph 7
Article 12 – paragraph 7
(7) Upon requestnotification of the Commission, a Member State shall 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 126 #
Proposal for a regulation
Article 26 – paragraph 1
Article 26 – paragraph 1
Foreign subsidies or an advantage that is economically equivalent to a financial contribution 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 or abnormally low 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 relatForeign subsidies granted during the three years prionr 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 notificationnotification and known future subsidies to be effective during the performance of the contract shall be taken into account in the assessment.
Amendment 134 #
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 25100 million.
Amendment 140 #
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 years preceding that notification or confirm in a declaration that they did not rknown future subsidies to be effecetive any foreign financial contributions in the last three yearsduring the performance of the contract. Undertakings which do not submitnotify such information or declaration shall not be awarded the contract.
Amendment 144 #
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 310% of the estimated value of the contract.
Amendment 150 #
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 three years prior to the submission of the tender or request to participate in the public procurement procedure or known future subsidies to be effective during the performance of the contract, 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.
Amendment 167 #
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 or an advantage economically equivalent to a financial contribution 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 170 #
Proposal for a regulation
Article 30 – paragraph 3 a (new)
Article 30 – paragraph 3 a (new)
(3a) For cases where the Commission adopts at least two decisions vis-à-vis an undertaking in accordance with paragraph 2 of this Article, it may adopt a decision prohibiting for a certain period of time an award of contract in any public procurement procedures.
Amendment 171 #
Proposal for a regulation
Article 31 – paragraph 3
Article 31 – paragraph 3
Amendment 174 #
Proposal for a regulation
Article 31 a (new)
Article 31 a (new)
Article 31a Cooperation with contracting authorities and Member States 1. Where a Member State suspects that a financial contribution or an advantage economically equivalent to a financial contribution may have a distortive effect in the internal market with regard to access to public procurement procedures, it shall inform the Commission with a view to requesting the opening of an investigation. It shall submit evidence to support this request. The Commission may decide not to open an investigation and inform the relevant national competent authority of its decision. 2. Where a contracting authority or contracting entity suspects that an undertaking has submitted an abnormally low tender, it shall require the undertaking to provide explanations with regard to price and costs proposed in relation to works, supplies or services in accordance with Article69 of Directive 2014/24/EU. Where the contracting authority or contracting entity has established that the abnormally low tender is caused by a foreign subsidy or non- compliance with environmental, social and labour requirements as ratified under international conventions, it shall exclude the undertaking from the public procurement procedure and notify it to the Commission.
Amendment 176 #
Proposal for a regulation
Article 32 – paragraph 1
Article 32 – paragraph 1
(1) The Commission mayshall impose fines and periodic penalty payments as set out in Article 15.
Amendment 179 #
Proposal for a regulation
Article 32 – paragraph 2
Article 32 – paragraph 2
(2) In addition, the Commission mayshall 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 184 #
Proposal for a regulation
Article 32 – paragraph 3
Article 32 – paragraph 3
(3) The Commission mayshall 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 189 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
(1) Where the information available substantiates a reasonable suspicion that foreign subsidies in a particular sector, for a particular type of economic activity or based on a particular subsidy instrument may distort the internal market, the Commission mayshall 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 Commission mayshall request the undertakings or associations of undertakings concerned 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 191 #
Proposal for a regulation
Article 34 – paragraph 2
Article 34 – paragraph 2
(2) The Commission mayshall 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 193 #
Proposal for a regulation
Article 44 – paragraph 1 – point a
Article 44 – paragraph 1 – point a
(a) amending the thresholds for notifications as set out in Articles 18 and 27, in the light of the practice of the Commission during the first fivetwo years of application of this Regulation, and taking into account the effectiveness of application;
Amendment 194 #
Proposal for a regulation
Article 44 – paragraph 1 – point b
Article 44 – paragraph 1 – point b
(b) exempting certain categories of undertakings concerned from the obligation to notify pursuant to Articles 19 and 28, in light of the practice of the Commission in the first fivetwo years of application of this Regulation, in case this practice allows to identify economic activities where foreign subsidies are unlikely to distort the internal market;
Amendment 196 #
Proposal for a regulation
Article 44 – paragraph 1 – point c a (new)
Article 44 – paragraph 1 – point c a (new)
(ca) specifying the definition of "advantage economically equivalent to a financial contribution" as set out in Article 2;
Amendment 198 #
Proposal for a regulation
Article 44 – paragraph 1 – point c b (new)
Article 44 – paragraph 1 – point c b (new)
(cb) supplementing the indicators as set out in Article 3.
Amendment 200 #
Proposal for a regulation
Article 46 – paragraph 1
Article 46 – paragraph 1
Within fivetwo years after the entry into force of this Regulation at the latest, 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. The report shall include a dedicated section on Chapter IV of this Regulation and take into consideration the following elements: – Number of prior notifications received by the Commission in accordance with Article 28; – Number of in-depth investigations opened according to Article 29; – Number of decisions issues where it has been found that a foreign subsidy has a distortive effect on the internal market; – Number of notifications received by the Commission from a national competent authority in accordance with Article 31(a).1; – Number of notifications received by the Commission from a contracting authority in accordance with Article 31(a).2.