Activities of Morten LØKKEGAARD 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 (42)
Amendment 61 #
Proposal for a regulation
Recital 5
Recital 5
(5) It is therefore necessary to complement existing Union instruments with a new tool to effectively deal with distortions in the internal market caused by foreign subsidies and ensure a level playing field. In particular, the new tool complements Union State aid rules which deal with distortions in the internal market caused by Member State subsidies. In parallel, the Union should promote effective rules on subsidies at multilateral level.
Amendment 63 #
Proposal for a regulation
Recital 6
Recital 6
(6) Rules and procedures to investigate foreign subsidies that actually or potentially distort the internal market should be laid down and, where relevant, those distortions should be redressed. Foreign subsidies could distort the internal market if the undertaking benefitting from the foreign subsidy engages in an economic activity in the Union. The proper application and enforcement of this Regulation will contribute to the resilience of the internal market against distortions caused by external economic actors. This Regulation should therefore establish rules for all undertakings engaging in an economic activity in the Union. Given the significance of the economic activities pursued by SMEs, and their contribution to the fulfilment of the Union’s key policy goals, special attention is given to the impact of this Regulation on them.
Amendment 71 #
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 third country in which the entity operates including the government’s role in the economy of that third country. Financial contributions may also be granted through a private entity if its actions can be attributed to the third country. A financial contribution includes the privileged access to the domestic market that an undertaking has, for instance due to special or exclusive rights that were granted to an undertaking without receiving adequate remuneration in conformity with market rates. Such a privileged access could lead to an unfair competitive advantage and create distortions in the internal market.
Amendment 81 #
Proposal for a regulation
Recital 10
Recital 10
(10) Such aA financial contribution should confer a benefit to an undertaking engaging in an economic activity in the internal market. A financial contribution 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 91 #
Proposal for a regulation
Recital 16
Recital 16
(16) The Commission 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 positive effects of the foreign subsidy should effectively contribute to achieving the objectives of Union policies. 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 make available guidelines to clarify the criteria used for the application of the balancing test, including the positive effects in relation to the objectives of Union policies.
Amendment 102 #
Proposal for a regulation
Article 6 – paragraph 3 – point h a (new)
Article 6 – paragraph 3 – point h a (new)
(ha) restraining to participate, directly or indirectly, in new public procurement or concession contract procedures in the internal market;
Amendment 107 #
Proposal for a regulation
Recital 21 a (new)
Recital 21 a (new)
(21 a) A contact point should be established by the Commission so that Member States or interested parties such as undertakings or trade associations can share information regarding actual or potential cases of distortion on the internal market with the Commission. The Commission can use this information for the relevant procedures under this Regulation, including the ex officio review.
Amendment 109 #
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 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. The Commission shall only accept the repayment on the condition that the repayment will fully remedy the distortion caused to the internal market, but never more than the cost of the distortion.
Amendment 110 #
(22) The Commission 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. The Commission should be able to use information from any available source, including from Member States and interested parties such as undertakings and trade associations. In addition, the Commission 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 Commission could also address questions to Member States or to third countries. Furthermore, the Commission 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 Commission should also have the power to take decisions on the basis of facts available if the undertaking in question does not cooperate.
Amendment 113 #
Proposal for a regulation
Article 6 – paragraph 6 a (new)
Article 6 – paragraph 6 a (new)
(6a) The Commission shall always consider any voluntary commitments offered by the undertaking in question with reference to Article 6 (point 3, 5 and 6), before gradually imposing structural remedies.
Amendment 115 #
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 shall take into account cases of repeated non-compliance when imposing such fines and periodic penalty payments.
Amendment 117 #
Proposal for a regulation
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
(1a) A court order authorising the Commission, and other involved officials, shall be issued before an inspection can be carried out at the premise of the undertaking concerned within the Union.
Amendment 120 #
Proposal for a regulation
Recital 30
Recital 30
(30) It is necessary to strike a balance between effective protection of the internal market and the need to limit the administrative burden on undertakings subject to this Regulation. Therefore, only concentrations meeting combined thresholds as defined in this Regulation based on the size of the turnover in the Union and the size of the subsidy should be subject to mandatory prior notification. The effectiveness of the threshold for the notification obligation for concentrations should be reviewed one year after the entry into force of this Regulation.
Amendment 129 #
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 three years prior to the concentration or known subsidies that have already been established and shall become effective following the concentration should be considered in the assessment.
Amendment 135 #
Proposal for a regulation
Recital 34
Recital 34
(34) When a foreign financial contribution is notified in the context of a public procurement procedure, the assessment should be limited to that procedure. The assessment shall include foreign financial contributions in the three years prior to the notification and known subsidies that have already been established and shall become effective following the procurement procedure.
Amendment 141 #
Proposal for a regulation
Recital 36 a (new)
Recital 36 a (new)
(36 a) The effectiveness of the threshold for the notification obligation for procurement should be reviewed one year after the entry into force of this Regulation.
Amendment 146 #
Proposal for a regulation
Recital 37 b (new)
Recital 37 b (new)
(37 b) The Commission should be able to use information obtained from the market investigation for the relevant procedures under this Regulation, including the ex officio review.
Amendment 160 #
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 entity. If the Commission does not adopt a decision within that time limit, the undertakings concerned shall be allowed to continue the process related to the public procurement.
Amendment 168 #
Proposal for a regulation
Article 30 – paragraph 2
Article 30 – paragraph 2
(2) Where the undertaking concerned does not offer commitments or where the Commission 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”). The adoption of a decision prohibiting the award of the contract results in the exclusion of the undertaking concerned from participation in the public procurement procedure.
Amendment 176 #
Proposal for a regulation
Article 2 – paragraph 2 – point a – point ii
Article 2 – paragraph 2 – point a – point ii
(ii) the foregoing of revenue that is otherwise due; or such as granting special or exclusive rights without adequate remuneration or tax exemptions;
Amendment 178 #
Proposal for a regulation
Article 2 – paragraph 2 – point a – point iii
Article 2 – paragraph 2 – point a – point iii
(iii) the provision of goods or services or the purchase of goods andor services;
Amendment 201 #
Proposal for a regulation
Article 3 – paragraph 1 – point d
Article 3 – paragraph 1 – point d
(d) the level of economic activity of the undertaking concerned on the internal market, including of any subsidiaries of that undertaking on the internal market;
Amendment 203 #
Proposal for a regulation
Article 3 – paragraph 1 – point d a (new)
Article 3 – paragraph 1 – point d a (new)
(d a) the level of economic activity of that undertaking on its domestic market;
Amendment 217 #
Proposal for a regulation
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
(2 b) The Commission shall make available guidelines on the application of this Article.
Amendment 222 #
(4 a) a foreign subsidy compensating for the operating costs of an undertaking, enabling that undertaking to offset its operating losses and provide goods and services at price levels that are not economically justifiable.
Amendment 227 #
Proposal for a regulation
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
the transfer of a foreign subsidy to a subsidiary of the undertaking established in the internal market;
Amendment 235 #
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. The positive effects shall contribute to the achievement of the objectives of Union policies.
Amendment 245 #
Proposal for a regulation
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
(2 a) The Commission shall make available guidelines on the criteria that are used for the balancing between the negative and the positive effects of a foreign subsidy.
Amendment 259 #
Proposal for a regulation
Article 6 – paragraph 3 – point a
Article 6 – paragraph 3 – point a
(a) offering access under fair and non- discriminatory conditions to an infrastructure or facility that was acquired or supported by the distortive foreign subsidies unless such fair and non- discriminatory access is already provided for by legislation in force in the Union;
Amendment 263 #
Proposal for a regulation
Article 6 – paragraph 3 – point h a (new)
Article 6 – paragraph 3 – point h a (new)
(h a) exclusion from future procurement procedures;
Amendment 266 #
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 may accept them and make themthe Commission shall in that case make those commitments binding on the undertaking in a decision with commitments according to Article 9(3).
Amendment 272 #
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 shallcould accept such repayment as commitment if it can ascertain that the repayment is transparent and effectively remedies the distortion, while taking into account the risk of circumvention.
Amendment 284 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
The Commission may on its own initiative examine information from any source regarding alleged distortive foreign subsidies, including from Member States and interested parties such as undertakings and trade associations.
Amendment 331 #
Proposal for a regulation
Article 11 – paragraph 5 a (new)
Article 11 – paragraph 5 a (new)
(5 a) The Commission shall establish a contact point where Member States and interested parties such as undertakings and trade associations can share information with regard to actual or potential distortions of the internal market.
Amendment 345 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
In order to carry out the duties assigned to it by this Regulation, the Commission may conduct inspections in the territory of a third country, provided that the undertaking concerned has given its consent and the government of the third country has been officially notified and has agreed to the inspection. Article 12(1), (2), and (3) points (a) and (b) shall apply by analogy.
Amendment 367 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
In a concentration, the assessment whether there is a distortion on the internal market within the meaning of Articles 3 or 4 shall be limited to the concentration at stake. Only foreign subsidies granted in the three calendar years prior to the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest, or known subsidies that have already been established and shall become effective following the concentration, shall be considered in the assessment.
Amendment 394 #
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 three years prior to the concentration or may benefit from known subsidies that have already been established and shall become effective following the concentration. That concentration shall be deemed to be a notifiable concentration for the purposes of this Regulation.
Amendment 416 #
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 three years prior to the notification or known subsidies that have already been established and shall become effective following the procurement procedure shall be taken into account in the assessment.
Amendment 444 #
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 may benefit from known subsidies that have already been established and shall become effective following the 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.
Amendment 452 #
Proposal for a regulation
Article 29 – paragraph 2
Article 29 – paragraph 2
(2) The Commission shall carry out a preliminary review no later than 630 days after it received the notification.
Amendment 490 #
Proposal for a regulation
Article 34 – paragraph 3
Article 34 – paragraph 3
(3) The Commission may use the information obtained from such market investigations in the framework of procedures under this Regulation, including the ex officio review.
Amendment 503 #
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. 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.