Next event: Decision by Parliament, 1st reading 2022/05/04 more...
- Matter referred back to the committee responsible 2022/05/04
- Committee report tabled for plenary, 1st reading/single reading 2022/04/28
- Committee report tabled for plenary, 1st reading 2022/04/28
- Vote in committee, 1st reading 2022/04/25
- Committee opinion 2022/04/22
- Committee opinion 2022/03/31
- Committee opinion 2022/03/30
- Amendments tabled in committee 2022/02/09
- Amendments tabled in committee 2022/02/09
Progress: Awaiting Parliament's position in 1st reading
Role | Committee | Rapporteur | Shadows |
---|---|---|---|
Lead | INTA | HANSEN Christophe ( EPP) | RODRÍGUEZ-PIÑERO Inma ( S&D), RINZEMA Catharina ( Renew), BÜTIKOFER Reinhard ( Verts/ALE), CAMPOMENOSI Marco ( ID), BOURGEOIS Geert ( ECR), MAUREL Emmanuel ( GUE/NGL) |
Committee Opinion | DEVE | ||
Committee Opinion | EMPL | ||
Committee Opinion | IMCO | DOLESCHAL Christian ( EPP) | Clara AGUILERA ( S&D), Morten LØKKEGAARD ( RE), Anne-Sophie PELLETIER ( GUE/NGL), Markus BUCHHEIT ( ID), Eugen JURZYCA ( ECR), Claude GRUFFAT ( Verts/ALE) |
Committee Opinion | ECON | YON-COURTIN Stéphanie ( Renew) | Alfred SANT ( S&D), Inese VAIDERE ( PPE), Gunnar BECK ( ID), Claude GRUFFAT ( Verts/ALE), Chris MACMANUS ( GUE/NGL), Michiel HOOGEVEEN ( ECR) |
Committee Opinion | JURI | LEBRETON Gilles ( ID) | Tiemo WÖLKEN ( S&D), Andrzej HALICKI ( PPE), Stéphane SÉJOURNÉ ( RE) |
Lead committee dossier:
Legal Basis:
RoP 57, TFEU 114, TFEU 207
Legal Basis:
RoP 57, TFEU 114, TFEU 207Subjects
Events
The European Parliament adopted by 627 votes to 8, with 11 abstentions, amendments to the proposal for a Regulation of the European Parliament and of the Council on foreign subsidies distorting the internal market.
The matter was referred back to the competent committee for inter-institutional negotiations.
The proposed 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 level-playing field.
The main amendments adopted in plenary relate to the following issues.
Distortions in the internal market
Members clarified that a foreign subsidy would be unlikely to distort the internal market if its total amount is less than EUR 4 million (EUR 5 million according to the original proposal) over a period of three consecutive years.
The Commission should be able to consider in its assessment of a distortion whether a third country has an effective system for the control of subsidies in place which is at least equivalent to the system in the Union and which would make subsidies granted by such a third country less likely to distort the internal market within the meaning of this Regulation.
In the interests of efficiency and transparency, the Commission should publish guidelines within 2 years of the entry into force of the Regulation, including explanations and examples of how each indicator is to be applied. The Commission, in close cooperation with the Member States, should regularly update these guidelines and keep the European Parliament and the Council informed.
Categories of foreign subsidies most likely to distort the internal market
These categories should also include: (i) export financing subsidy granted by a third country which is not a signatory to the OECD Arrangement on Officially Supported Export Credits; (ii) foreign subsidies to an undertaking active in a sector characterised by structural excess capacity.
Balancing
Where warranted, the Commission could balance the negative effects of a foreign subsidy in terms of distortion of the internal market against its positive effects on the development of the relevant economic activity in the internal market. No later than 24 months after the entry into force of the Regulation, the Commission should publish guidelines on the application of the balancing test , including the criteria used in the balancing.
Undertakings and redress
The Commission should impose redressive measures to address the actual or potential distortion of the internal market caused by a foreign subsidy, unless it has accepted commitments offered by the undertaking concerned.
The Commission could accept commitments offered by the undertaking concerned, where such commitments fully and effectively remedy the distortion on the internal market. By accepting such commitments, the Commission should make them binding on the undertaking in a decision with commitments. The Commission should monitor the undertaking’s compliance with the commitments agreed upon.
Commitments or redressive measures could take, inter alia , the following forms: (i) a reduction in capacity or market presence, including by means of a temporary restriction of commercial activity in the internal market; (ii) an obligation on the undertakings concerned to notify the Commission of any participation in future public procurement procedures in the Union for an appropriate period of time where the estimated value of the public contract is below certain thresholds; (iii) an obligation on the undertakings concerned to adapt their governance structure. The Commission should impose information and transparency obligations.
Ex officio examination of foreign subsidies
The Commission could, on its own initiative, examine information from any source, including from Member States and companies or EU-wide social partners , concerning alleged distortive foreign subsidies. The Commission should establish a contact point through which such information can be provided on a confidential basis. The competent public authorities should collect and exchange data with the Commission.
Interim measures
The Commission could take interim measures, including during the preliminary review period. Interim measures would be limited in time and could be prolonged where an indication of distortive effects or a serious risk of substantial and irreparable damage to competition on the internal market continues to exist.
In order to carry out its tasks under the Regulation, the Commission would have to carry out inspections of undertakings where necessary.
Fines and periodic penalty payments
The Commission would, by decision, impose fines and periodic penalty payments where an undertaking or association of undertakings concerned, intentionally or negligently, supplies incomplete, incorrect or misleading information.
Definition and thresholds for notification of concentrations
A ‘notifiable concentration’ would be deemed to arise where, in the context of a concentration, the acquired undertaking or at least one of the merging undertakings is established in the Union and generates an aggregate turnover of at least EUR 400 million (EUR 500 million under the proposal).
A notifiable foreign financial contribution in an EU public procurement procedure should be deemed to arise where the estimated total value of that public procurement is equal to or greater than EUR 200 million (instead of EUR 250 million).
Third-country dialogue
Where, following a market investigation, the Commission discovers the existence of systemic distortive foreign subsidies, or where other information available substantiates a reasonable suspicion as to the existence of such subsidies, the Commission, on behalf of the Union, may engage in a dialogue with the third country in question to explore options aimed at obtaining the cessation or modification of the subsidies with a view to eliminating their distortive effects on the internal market.
That dialogue should not prevent the Commission from taking further action, including the opening or continuation of investigations or the application of interim or redressive measures.
The Commission could also seek to obtain the cessation or modification of the systemic distortive subsidies also by raising the matter in any relevant international forum. The Commission should inform the European Parliament and the Council of relevant developments.
PURPOSE: to propose a new instrument to address the potentially distorting effects of foreign subsidies in the single market.
PROPOSED ACT: Regulation of the European Parliament and of the Council.
ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with the Council.
BACKGROUND: a strong, open and competitive single market allows both European and foreign companies to compete on the basis of merit, provided that a level playing field in the market is guaranteed.
In recent years, there have been cases where foreign subsidies have been found to have distorting effects on the EU's internal market, creating an uneven playing field. These foreign subsidies can take different forms, such as zero interest loans, unlimited state guarantees, tax exemptions or reductions for foreign investment or trade, or dedicated State funding.
EU rules on competition, public procurement and trade defence instruments play an important role in ensuring a level playing field for companies operating in the single market. However, none of these tools apply to foreign subsidies that give their beneficiaries an unfair advantage when acquiring EU companies, participating in public procurement in the EU or doing other business in the EU.
There are currently no specific EU rules to address the distorting effects that foreign subsidies can have on the internal market. It is therefore necessary to complement the existing EU instruments with a new instrument to effectively combat distortions in the internal market caused by foreign subsidies and to ensure a level playing field
The legislative proposal aims to fill a regulatory gap in the Single Market. It is in line with the new Industrial Strategy for Europe presented by the Commission in March 2020 and follows the adoption of the White Paper on foreign subsidies in June 2020.
CONTENT: the proposed regulation establishes rules and procedures for investigating foreign subsidies that distort the internal market and for remedying the distortions they cause. Such distortions may affect all economic activities, in particular in the case of mergers and public procurement procedures.
Under the proposed Regulation, the Commission will have the power to investigate financial contributions granted by public authorities of a non-EU country which benefit companies engaging in an economic activity in the EU and redress their distortive effects, as relevant. In this context, the Regulation proposes the introduction of three tools:
- Component 1 : a notification-based tool to investigate concentrations involving a financial contribution by a non-EU government, where the EU turnover of the company to be acquired (or of at least one of the merging parties) is EUR 500 million or more and the foreign financial contribution is at least EUR 50 million;
- Component 2 : a notification-based tool to investigate bids in public procurements involving a financial contribution by a non-EU government, where the estimated value of the procurement is EUR 250 million or more; and
- Component 3 : a tool to investigate all other market situations and smaller concentrations and public procurement procedures, which the Commission can start on its own initiative (ex-officio) and may request ad-hoc notifications.
Ex officio examination of subsidies .
The proposal provides that the Commission could, on its own initiative, examine information from any source concerning alleged distortive foreign subsidies, either as a preliminary examination or as a full investigation. It would be able to conduct on-site inspections in the EU and elsewhere.
The Commission should take into account the positive effects of the foreign subsidy on the development of the subsidised economic activity in question. It should balance these positive effects against the negative effects of a foreign subsidy in terms of distortion in the internal market.
If the negative effects outweigh the positive effects, the Commission could impose remedial measures or accept undertakings from the companies concerned to remedy the distortions. The proposal foresees a range of structural or behavioural remedies, such as divestment of certain assets or prohibition of a certain market behaviour.
The Commission could impose fines and periodic penalty payments for procedural infringements, such as the supply of incorrect or incomplete information in an investigation, and for non-compliance with a Commission decision imposing redressive, interim measures or commitments.
Concentration and bids in public procurement
As regards mergers and public procurement, the proposal involves a system of ex ante notification of the largest and potentially most distortive case. It sets out the conditions under which a foreign subsidy is considered to distort the internal market.
The Commission would have the power, upon notification, to examine information on foreign financial contributions in the context of a proposed merger. Companies should not be allowed to implement the concentration before the conclusion of the Commission's review. The proposal specifies when a concentration should be suspended and sets out the relevant time limits.
The proposed Regulation provides that if an undertaking fails to comply with the obligation to notify a subsidised concentration or a financial contribution in the context of public procurement contracts meeting the thresholds, the Commission could impose fines and periodic penalty payments. Fines and periodic penalty payments could also be imposed in the case of notifications containing incorrect information or in the case of failure to notify.
In case of notified transactions, the Commission should also have the power to prohibit the subsidised acquisition or the award of the public procurement contract to the subsidised bidder.
Budgetary impact
The total administrative expenditure for the implementation of the proposal in 2021-2027 will thus amount to EUR 90.340 million, part of which will be financed from the single market programme.
Documents
- Decision by Parliament, 1st reading: T9-0143/2022
- Committee report tabled for plenary, 1st reading/single reading: A9-0135/2022
- Committee report tabled for plenary, 1st reading: A9-0135/2022
- Committee opinion: PE704.679
- Committee opinion: PE700.661
- Committee opinion: PE703.070
- Amendments tabled in committee: PE719.563
- Amendments tabled in committee: PE719.564
- Committee draft report: PE703.002
- Contribution: COM(2021)0223
- Economic and Social Committee: opinion, report: CES3401/2021
- Contribution: COM(2021)0223
- Contribution: COM(2021)0223
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SEC(2021)0182
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SWD(2021)0099
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SWD(2021)0100
- Legislative proposal published: COM(2021)0223
- Legislative proposal published: EUR-Lex
- Document attached to the procedure: EUR-Lex SEC(2021)0182
- Document attached to the procedure: EUR-Lex SWD(2021)0099
- Document attached to the procedure: EUR-Lex SWD(2021)0100
- Economic and Social Committee: opinion, report: CES3401/2021
- Committee draft report: PE703.002
- Amendments tabled in committee: PE719.563
- Amendments tabled in committee: PE719.564
- Committee opinion: PE703.070
- Committee opinion: PE700.661
- Committee opinion: PE704.679
- Committee report tabled for plenary, 1st reading/single reading: A9-0135/2022
- Contribution: COM(2021)0223
- Contribution: COM(2021)0223
- Contribution: COM(2021)0223
Activities
- Christophe HANSEN
Plenary Speeches (0)
Amendments | Dossier |
464 |
2021/0114(COD)
2022/02/02
IMCO
175 amendments...
Amendment 100 #
Proposal for a regulation Article 6 – paragraph 3 – point e (e) publication of a summary of results of research and development
Amendment 101 #
Proposal for a regulation 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 102 #
Proposal for a regulation 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 103 #
Proposal for a regulation Article 6 – paragraph 3 – point h a (new) (ha) compliance with the environmental, social and labour standards applicable to them
Amendment 104 #
Proposal for a regulation Article 6 – paragraph 4 (4) The Commission
Amendment 105 #
Proposal for a regulation Article 6 – paragraph 5 Amendment 106 #
Proposal for a regulation Article 6 – paragraph 5 (5) If an undertaking offers commitments which fully and effectively remedy the distortion on the internal market, the Commission
Amendment 107 #
Proposal for a regulation Article 6 – paragraph 5 (5)
Amendment 108 #
Proposal for a regulation Article 6 – paragraph 6 Amendment 109 #
Proposal for a regulation 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 #
Proposal for a regulation 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, provided that it fully remedies the distortion caused. It should be ascertain that the repayment as commitment if it can ascertain that the repayment is transparent and effective, while taking into account the risk of circumvention.
Amendment 111 #
Proposal for a regulation 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
Amendment 112 #
Proposal for a regulation Article 6 – paragraph 6 a (new) (6a) The Commission shall thoroughly consult affected Union industries on the choice of redressive measures, taking account of sectoral specificities, and on the assessment of whether or not commitments should be accepted, and which commitments should be accepted.
Amendment 113 #
Proposal for a regulation 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 114 #
Proposal for a regulation Article 6 – paragraph 6 a (new) (6a) If an undertaking does not make commitments or take redressive measures, this may lead to exclusion from the market.
Amendment 115 #
Proposal for a regulation Article 12 – paragraph 1 (1) The Commission may conduct the necessary inspections of undertakings when a distortion is clearly identified.
Amendment 116 #
Proposal for a regulation Article 12 – paragraph 1 (1) The Commission
Amendment 117 #
Proposal for a regulation 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 118 #
Proposal for a regulation Article 12 – paragraph 2 – point a (a) to enter any premises
Amendment 119 #
Proposal for a regulation Article 12 – paragraph 2 – point a (a) to enter relevan
Amendment 120 #
Proposal for a regulation Article 12 – paragraph 2 – point d Amendment 121 #
Proposal for a regulation 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 (a) specifying the subject matter
Amendment 123 #
Proposal for a regulation Article 12 – paragraph 7 (7) Upon request of the Commission,
Amendment 124 #
Proposal for a regulation Article 12 – paragraph 7 (7) Upon
Amendment 125 #
Proposal for a regulation Article 12 – paragraph 7 (7) Upon request of the Commission, a Member State
Amendment 126 #
Proposal for a regulation 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.
Amendment 127 #
Proposal for a regulation 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 or abnormally low 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
Amendment 128 #
Proposal for a regulation 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
Amendment 129 #
Proposal for a regulation 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
Amendment 130 #
(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
Amendment 131 #
Proposal for a regulation 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
Amendment 132 #
Proposal for a regulation 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
Amendment 133 #
Proposal for a regulation 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
Amendment 134 #
Proposal for a regulation 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
Amendment 135 #
Proposal for a regulation 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
Amendment 136 #
Proposal for a regulation 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
Amendment 137 #
Proposal for a regulation 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
Amendment 138 #
Proposal for a regulation Article 27 – paragraph 2 a (new) Amendment 139 #
Proposal for a regulation 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
Amendment 140 #
Proposal for a regulation 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
Amendment 141 #
Proposal for a regulation 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 either by indicating all foreign financial contributions received in the three years preceding that notification or
Amendment 142 #
Proposal for a regulation 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
Amendment 143 #
Proposal for a regulation 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
Amendment 144 #
Proposal for a regulation 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
Amendment 145 #
Proposal for a regulation Article 28 – paragraph 2 (2) The obligation to notify foreign financial contributions under this paragraph shall extend to economic operators, groups of economic operators
Amendment 146 #
Proposal for a regulation 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
Amendment 147 #
Proposal for a regulation Article 28 – paragraph 3 (3)
Amendment 148 #
Proposal for a regulation 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
Amendment 149 #
Proposal for a regulation Article 28 – paragraph 6 (6) Where the Commission suspects that an undertaking may have benefitted from foreign subsidies in the
Amendment 150 #
Proposal for a regulation 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 151 #
Proposal for a regulation Article 28 – paragraph 6 (6) Where the Commission suspects that an undertaking may have benefitted from foreign subsidies in the
Amendment 152 #
Proposal for a regulation Article 28 – paragraph 6 (6) Where the Commission suspects that an undertaking may have be
Amendment 153 #
Proposal for a regulation Article 28 – paragraph 6 a (new) (6a) For the purpose of this Regulation, the Commission shall establish a communication channel presenting strict confidentiality guarantees to receive comments from interested parties and Member states which suspect 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. The Commission shall duly take into account the information reported and may request information and the notification of the foreign financial contributions received by that undertaking in any public procurement procedure. In any case, the Commission shall inform in good time the Member States or the interested parties about its decision to initiate or not a preliminary investigation.
Amendment 154 #
Proposal for a regulation Article 28 – paragraph 6 a (new) (6a) In the case of large procedures with different calls for tender, the Commission will have the possibility to group these tenders in one lot in order to be able to carry out a joint notification procedure and avoid administrative overload
Amendment 155 #
Proposal for a regulation 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 156 #
Proposal for a regulation Article 29 – paragraph 2 (2) The Commission shall carry out a preliminary review no later than
Amendment 157 #
Proposal for a regulation Article 29 – paragraph 2 (2) The Commission shall carry out a preliminary review no later than
Amendment 158 #
Proposal for a regulation Article 29 – paragraph 2 (2) The Commission shall carry out a preliminary review no later than
Amendment 159 #
Proposal for a regulation 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 160 #
Proposal for a regulation Article 29 – paragraph 4 (4) The Commission may adopt a decision closing the in-depth investigation no later than 12
Amendment 161 #
Proposal for a regulation Article 29 – paragraph 4 (4) The Commission may adopt a decision closing the in-depth investigation no later than
Amendment 162 #
Proposal for a regulation Article 29 – paragraph 4 (4) The Commission may adopt a decision closing the in-depth investigation no later than
Amendment 163 #
Proposal for a regulation Article 29 – paragraph 4 (4) The Commission may adopt a decision closing the in-depth investigation no later than 200 days after it received the notification. In exceptional circumstances, this time limit may be extended for 60 days after consultation with the concerned contracting authority or contracting entity.
Amendment 164 #
Proposal for a regulation Article 29 – paragraph 4 (4) The Commission may adopt a decision closing the in-depth investigation
Amendment 165 #
Proposal for a regulation Article 29 – paragraph 4 (4) The Commission may adopt a decision closing the in-depth investigation no later than 12
Amendment 166 #
Proposal for a regulation 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
Amendment 167 #
Proposal for a regulation 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 168 #
Proposal for a regulation 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 169 #
Proposal for a regulation 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 170 #
Proposal for a regulation 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 Amendment 172 #
Proposal for a regulation 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) (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 174 #
Proposal for a regulation 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 175 #
Proposal for a regulation Article 32 – paragraph 1 (1) The Commission may impose fines and periodic penalty payments as set out in Article 15 as well as excluding the undertaking concerned for a limited period of time from the new public procurement procedures.
Amendment 176 #
Proposal for a regulation Article 32 – paragraph 1 (1) The Commission
Amendment 177 #
Proposal for a regulation Article 32 – paragraph 1 a (new) (1a) In case of deliberate non- compliance with the notification requirement for foreign subsidies, the Commission may exclude the company from future procurement procedures for a limited period of time across the EU.
Amendment 178 #
Proposal for a regulation 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, or 3 % of their aggregate turnover in the preceding business year if they have failed to comply with a previous decision of the Commission in the last three years, where they intentionally or negligently supply incorrect or misleading information in a notification and declarations pursuant to Article 28 or supplement thereto;
Amendment 179 #
Proposal for a regulation Article 32 – paragraph 2 (2) In addition, the Commission
Amendment 180 #
Proposal for a regulation 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
Amendment 181 #
Proposal for a regulation Article 32 – paragraph 2 a (new) (2a) In both procedures under Articles 19 and 28, the Commission shall involve the Member States in the examination procedure and shall maintain a regular exchange of information with them.
Amendment 182 #
Proposal for a regulation Article 32 – paragraph 2 b (new) Amendment 183 #
Proposal for a regulation 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 or 15 % of their aggregate turnover in the preceding business year if they failed to comply with a previous decision of the Commission in the last three years, where they, intentionally or negligently, fail to notify a subsidy in accordance with Article 28 during the public procurement procedure.
Amendment 184 #
Proposal for a regulation Article 32 – paragraph 3 (3) The Commission
Amendment 185 #
Proposal for a regulation 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
Amendment 186 #
Proposal for a regulation Article 33 a (new) Amendment 187 #
Proposal for a regulation Article 34 Amendment 188 #
Proposal for a regulation 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
Amendment 189 #
Proposal for a regulation 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
Amendment 190 #
Proposal for a regulation Article 34 – paragraph 2 (2) The Commission
Amendment 191 #
Proposal for a regulation Article 34 – paragraph 2 (2) The Commission
Amendment 192 #
Proposal for a regulation Article 34 – paragraph 4 (4) Articles 11, 12, 13, 14 and 15 of this
Amendment 193 #
Proposal for a regulation 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
Amendment 194 #
Proposal for a regulation 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
Amendment 195 #
Proposal for a regulation Article 44 – paragraph 1 – point b a (new) (ba) criteria to determine the specific commitments and regressive measures in Article 6 (5);
Amendment 196 #
Proposal for a regulation 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 197 #
Proposal for a regulation 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 198 #
Proposal for a regulation Article 44 – paragraph 1 – point c b (new) (cb) supplementing the indicators as set out in Article 3.
Amendment 199 #
Proposal for a regulation Article 46 – paragraph 1 Within
Amendment 200 #
Proposal for a regulation Article 46 – paragraph 1 Within
Amendment 201 #
Proposal for a regulation Article 46 – paragraph 1 Within
Amendment 202 #
Proposal for a regulation 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.
Amendment 28 #
Proposal for a regulation Recital 1 a (new) (1a) The European internal market should create a level playing field for economic activities in a market economy taking into account social progress.
Amendment 29 #
Proposal for a regulation 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 30 #
Proposal for a regulation Recital 3 a (new) (3a) Not only financial contributions should be considered as distortive subsidies, social or environmental dumping should also be taken into account as distorting elements of competition and of a level playing field.
Amendment 31 #
Proposal for a regulation 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
Amendment 32 #
Proposal for a regulation Recital 7 (7) To ensure a level playing field throughout the internal market and consistency in the application of this Regulation, the Commission should be the sole authority competent to apply this Regulation. The Commission should have the power to examine any foreign subsidy to the extent it is in the scope of this Regulation in any sector of the economy on its own initiative relying on information from all available sources. The Commission could also, where necessary, set thresholds differentiated according to the type of contract. Member States should work with the Commission to provide it with the information they consider appropriate and relevant. To ensure effective control, in the specific case of large concentrations (mergers and acquisitions) and public procurement procedures above certain thresholds, the Commission should have the power to review foreign subsidies based on a prior notification by the undertaking to the Commission.
Amendment 33 #
Proposal for a regulation Recital 8 (8) Foreign subsidy in the context of this Regulation should be understood as an intervention that meets
Amendment 34 #
Proposal for a regulation 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 35 #
Proposal for a regulation 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
Amendment 36 #
Proposal for a regulation 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 37 #
Proposal for a regulation 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-
Amendment 38 #
Proposal for a regulation Recital 11 a (new) (11a) A foreign subsidy is considered granted from the moment the beneficiary has an entitlement to receive the subsidy. The actual payment of the subsidy is not a necessary condition for a subsidy being considered within the scope of this Regulation.
Amendment 39 #
Proposal for a regulation 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-
Amendment 40 #
Proposal for a regulation 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
Amendment 41 #
Proposal for a regulation 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 (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 43 #
Proposal for a regulation Recital 14 (14) When applying these indicators, the Commission could take into account different elements such as the size of the
Amendment 44 #
Proposal for a regulation 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.
Amendment 45 #
Proposal for a regulation Recital 15 a (new) (15a) Goods and services from third countries should respect core labour and environmental standards in public procurement.
Amendment 46 #
Proposal for a regulation 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
Amendment 47 #
Proposal for a regulation Recital 17 (17) Where the Commission examines a foreign subsidy on its own initiative, it should have the power to impose redressive measures on an undertaking to remedy any distortion caused by a foreign subsidy in the internal market. Redressive measures should be proportionate and suitable to remedy the distortion at stake. They should include behavioural or structural remedies or the repayment of the foreign subsidy. This process should be transparent for the public;
Amendment 48 #
Proposal for a regulation Recital 18 (18) The undertaking concerned should have the possibility to offer commitments in order to remedy the distortion caused by the foreign subsidy. If the Commission considers that the commitments offered fully and effectively remedy the distortion, it could accept them and make them binding by public decision.
Amendment 49 #
Proposal for a regulation 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 Amendment 51 #
Proposal for a regulation 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 should publish guidance on how to open such a procedure.
Amendment 52 #
Proposal for a regulation Recital 25 (25) The Commission should close the in-depth investigation by adopting a publicly accessible decision.
Amendment 53 #
Proposal for a regulation 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 54 #
Proposal for a regulation 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
Amendment 55 #
Proposal for a regulation 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
Amendment 56 #
Proposal for a regulation 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
Amendment 57 #
Proposal for a regulation 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, it is therefore necessary to ensure a level playing field. 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 a threshold set in this Regulation to capture economically significant cases while minimising the
Amendment 58 #
Proposal for a regulation Recital 33 a (new) (33a) In order to ensure a level playing field in the internal market, the Commission should establish specific control conditions for subcontracting
Amendment 59 #
Proposal for a regulation Recital 34 Amendment 60 #
Proposal for a regulation 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 61 #
Proposal for a regulation 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.
Amendment 62 #
Proposal for a regulation 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
Amendment 63 #
Proposal for a regulation Recital 36 a (new) (36a) Foreign subsidies should also be controlled with regard to unduly advantageous offers in relation to works and services. Since it is necessary for the tenderer to be able to justify or explain those costs sufficiently, otherwise, the contracting authority would have the right to reject the tender.
Amendment 64 #
Proposal for a regulation Recital 44 (44) Restrictions to Articles
Amendment 65 #
Proposal for a regulation 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
Amendment 66 #
Proposal for a regulation 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. Such distortions may arise with respect to any economic activity, and in particular in concentrations and public procurement procedures. This legislation also intends to ensure a level playing field in the public procurement market and to improve the access of Union economic operators, goods and services to the public procurement and concessions markets of third countries.
Amendment 67 #
Proposal for a regulation 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 68 #
Proposal for a regulation Article 1 – paragraph 2 (2) This Regulation addresses 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. The application of this Regulation shall be without prejudice to the international obligations of the Union as well as to measures that Member States and contracting entities may take in accordance with Directives 2014/23/EU, 2014/24/EU and 2014/25/EU
Amendment 69 #
Proposal for a regulation Article 1 – paragraph 2 (2) This Regulation addresses foreign subsidies
Amendment 70 #
Proposal for a regulation 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 71 #
Proposal for a regulation Article 1 – paragraph 2 a (new) (2a) This Regulation applies with respect to restrictive or discriminatory procurement measures or practices applied by a third country in relation to purchases of goods and services not covered by public procurement.
Amendment 72 #
Proposal for a regulation 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 73 #
Proposal for a regulation Article 3 – paragraph 1 – point b (b) the nature of the subsidy, including an advantage that is economically equivalent to a financial contribution;
Amendment 74 #
Proposal for a regulation Article 3 – paragraph 1 – point d Amendment 75 #
Proposal for a regulation 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 76 #
Proposal for a regulation 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 77 #
Proposal for a regulation Article 3 – paragraph 1 – point e a (new) (ea) compliance with conventions of the International Labour Organization and European environmental standards.
Amendment 78 #
Proposal for a regulation Article 3 – paragraph 1 – point e a (new) (ea) strategic autonomy
Amendment 79 #
Proposal for a regulation 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 80 #
Proposal for a regulation Article 3 – paragraph 2 (2) A foreign subsidy is unlikely to distort the internal market if its total amount is below
Amendment 81 #
Proposal for a regulation Article 3 – paragraph 2 (2) A foreign subsidy is unlikely to distort the internal market if its total amount is below EUR
Amendment 82 #
Proposal for a regulation Article 3 – paragraph 2 (2) A foreign subsidy is unlikely to distort the internal market if its total amount is below EUR
Amendment 83 #
Proposal for a regulation Article 3 – paragraph 2 a (new) (2a) The European Commission´s findings of subsidies benefitting third country producers in a given sector made in relevant and recent Trade Defence Instruments (TDIs) investigations, or subsidies documented in reports published by international intergovernmental organizations shall constitute sufficient evidence of distortive subsidies to operators in the countries and sectors concerned having met the relevant threshold.
Amendment 84 #
Proposal for a regulation 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 85 #
Proposal for a regulation 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 86 #
Proposal for a regulation Article 3 – paragraph 2 b (new) Amendment 87 #
Proposal for a regulation Article 4 – paragraph 1 – point 4 (4) a foreign subsidy enabling an undertaking to submit an unduly advantageous tender, on the basis of which the undertaking would be awarded the public contract. (4a) a foreign subsidy in the form of export support measures such as export credit guarantees, breaching the OECD Arrangement on officially supported export credits; (4b) all foreign subsidy to beneficiaries active in sectors characterized by structural excess capacity; (4c) foreign subsidies to operators which have privileged and/or protected access to a significant non-EU market, especially if the non-EU market is the operator's domestic market;
Amendment 88 #
Proposal for a regulation 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
Amendment 89 #
Proposal for a regulation 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 90 #
Proposal for a regulation Article 4 – paragraph 1 – point 4 (4) a foreign subsidy enabling an undertaking to submit an unduly advantageous or abnormally low tender, on the basis of which the undertaking would be awarded the public contract.
Amendment 91 #
Proposal for a regulation Article 4 – paragraph 1 – point 4 a (new) (4a) all export finance subsidies granted by countries that are not signatories to the OECD Arrangement on Officially Supported Export Credits.
Amendment 92 #
Proposal for a regulation Article 4 – paragraph 1 – point 4 a (new) (4a) a foreign subsidy through lower social or environmental dumping practices, standards or weaker enforcement
Amendment 93 #
Proposal for a regulation Article 4 – paragraph 1 – point 4 b (new) (4b) foreign subsidies to operators that have privileged or protected access to a significant non-EU market, especially if the non-EU market is the operator’s domestic market.
Amendment 94 #
Proposal for a regulation Article 6 – paragraph 1 (1) To remedy the distortion on the internal market actually or potentially caused by a foreign subsidy, the Commission
Amendment 95 #
Proposal for a regulation Article 6 – paragraph 1 (1) To remedy the distortion on the internal market actually or potentially caused by a foreign subsidy, the Commission may impose redressive measures based on an analysis of the impact of the subsidy on the internal market. The undertaking concerned may also offer commitments.
Amendment 96 #
Proposal for a regulation 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 97 #
Proposal for a regulation Article 6 – paragraph 2 (2) Commitments or redressive measures shall fully and effectively remedy the distortion actually or potentially caused by the foreign subsidy in the internal market.
Amendment 98 #
Proposal for a regulation Article 6 – paragraph 3 – introductory part (3) Commitments or redressive measures may consist of the following non-exhaustive list :
Amendment 99 #
Proposal for a regulation Article 6 – paragraph 3 – point b (b) reducing capacity or market presence notably by means of temporary market access restrictions, temporary restrictions in the supply of goods or services in the internal market where the related economic activity is distorted as a result of foreign subsidies, taking account of sectorial specificities;
source: 704.698
2022/02/03
ECON
289 amendments...
Amendment 100 #
Proposal for a regulation Recital 31 (31) Below the notification thresholds, the
Amendment 101 #
Proposal for a regulation 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 should publish a guidance on the criteria to require such a notification.
Amendment 102 #
Proposal for a regulation Recital 32 a (new) (32 a) Notwithstanding any potential pre- notifications contacts, if undertakings that generated and aggregated turnover in the Union of at least EUR 500 million and received from third countries an aggregate financial contribution in the three years prior to notification of more than EUR 50 million, and where there are no special circumstances, the Commission should have the possibility to carry out a simplified procedure under which the Commission treats certain concentrations on the basis that they do not raise competition concerns and adopts and publishes a short-form decision declaring a concentration compatible with the internal market.
Amendment 103 #
Proposal for a regulation Recital 32 a (new) (32 a) In the context of the ex-ante review mechanism for concentrations, concerned undertakings should have the possibility to request pre-notification consultations with the Commission based on good faith, with a view to avoiding over-compliance and excessive administrative burden for both the Commission and potentially concerned undertakings. The aim of those consultations should be to receive guidance on whether or not the formal thresholds for notification have been met. The Commission should ensure that undertakings are informed of this possibility to the broadest extent possible.
Amendment 104 #
Proposal for a regulation Recital 33 (33) The need to address
Amendment 105 #
Proposal for a regulation 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
Amendment 106 #
Proposal for a regulation Recital 35 Amendment 107 #
Proposal for a regulation Recital 37 (37) Taking into account the nature of the ex ante review mechanism for concentrations and public procurement awards, and the need for legal certainty regarding these specific transactions, a concentration or public procurement tender notified and assessed under the respective procedures cannot be reviewed again by the
Amendment 108 #
Proposal for a regulation Recital 39 (39) In the interest of transparency and
Amendment 109 #
Proposal for a regulation Recital 40 (40)
Amendment 110 #
Proposal for a regulation Recital 41 (41) In cases where information marked by the undertaking as confidential or business secret does not seem to be covered by obligations of professional secrecy, it is appropriate to have a mechanism in place according to which the
Amendment 111 #
Proposal for a regulation Recital 43 (43) The implementation of this Regulation by the Union should comply with Union law, the WTO Agreement and be consistent with commitments made under other trade and investment agreements to which the Union or the Member States are parties. This Regulation should be without prejudice to the development of multilateral rules to address distortive subsidies.
Amendment 112 #
Proposal for a regulation Recital 46 (46) Where the
Amendment 113 #
Proposal for a regulation 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
Amendment 114 #
Proposal for a regulation 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. Such distortions may arise with respect to any economic activity, and in particular in concentrations and public procurement procedures.
Amendment 115 #
Proposal for a regulation Article 1 – paragraph 1 (1) This Regulation lays down rules and procedures for investigating foreign subsidies that distort the internal market and for eventually redressing such distortions where detected. Such distortions may arise with respect to any economic activity, and in particular in concentrations and public procurement procedures.
Amendment 116 #
Proposal for a regulation Article premier – paragraph 1 – subparagraph 1 (new) This Regulation should also make it possible to check whether foreign subsidies pose a threat to Member State sovereignty, to gauge the impact of such subsidies on the proper functioning of democracy and on the plurality of information, and to prevent a harmful level of economic leverage from being obtained.
Amendment 117 #
Proposal for a regulation Article 1 – paragraph 2 (2) This Regulation addresses foreign subsidies
Amendment 118 #
Proposal for a regulation Article 1 – paragraph 2 (2) This Regulation addresses foreign subsidies
Amendment 119 #
Proposal for a regulation Article 1 – paragraph 2 (2) This Regulation addresses foreign subsidies granted to an undertaking engaging in an economic activity in the EU's internal market.
Amendment 120 #
Proposal for a regulation Article 1 – paragraph 2 a (new) (2 a) The competent authority having the power to investigate and redress foreign subsidies that have a Union dimension and thereby distort the internal market is the European Commission. A Union dimension is established when a clear impact on the internal market has been recognised, as based on the notification thresholds listed in this Regulation.
Amendment 121 #
Proposal for a regulation Article 1 – paragraph 2 a (new) (2 a) Foreign subsidies to undertakings supplying energy to Member States shall be exempt from this Regulation;
Amendment 122 #
Proposal for a regulation Article 1 – paragraph 2 b (new) (2 b) A national competent authority shall have the same powers where the investigated foreign subsidy has a distortive effect on the internal market but falls below the notification thresholds, or if the subsidy involves only one specific Member State, or where a Union dimension has not been established. In this Regulation the reference to the competent authority will be the investigative authority unless otherwise specifically indicated.
Amendment 123 #
Proposal for a regulation Article 1 – paragraph 2 c (new) (2 c) A structured communication network between investigative authorities shall be established.
Amendment 124 #
Proposal for a regulation 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 an economically equivalent support 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 industries.
Amendment 125 #
Proposal for a regulation Article 2 – paragraph 2 – point a – introductory part (a) a financial contribution shall include inter alia:
Amendment 126 #
Proposal for a regulation Article 2 – paragraph 2 – point a – point i (i) the transfer of funds or liabilities, such as capital injections, grants, loans, loan guarantees, tailored lending conditions, fiscal incentives, setting off of operating losses, compensation for financial burdens imposed by public
Amendment 127 #
Proposal for a regulation Article 2 – paragraph 2 – point a – point iii a (new) (iii a) any regulatory intervention which favours certain undertakings or the production of certain goods and affects the profitability of some actors on their domestic markets.
Amendment 128 #
Proposal for a regulation Article 2 – paragraph 2 – point b – introductory part (b) the financial contribution or any other economically equivalent support provided by the third country shall include the financial contribution or any other economically equivalent support provided by:
Amendment 129 #
Proposal for a regulation Article 2 – paragraph 2 – point b – point ii (ii) foreign public entities, whose actions can be attributed to the third country, taking into account elements such as the characteristics of the entity, the legal and economic environment prevailing in the State in which the entity operates including the government’s role in the economy, such as central banks or public investment banks; or
Amendment 130 #
Proposal for a regulation Article 2 – paragraph 2 – point b a (new) (b a) support that is economically equivalent to financial contribution shall : i) refer to a policy action or non-action in a third country including inadequately remunerated special or exclusive rights as well as any selective exemption from or failure to ensure compliance with applicable rules, such as obligations relating to applicable environmental, social and labour law and standards;and ii) result in a benefit to an undertaking engaging in an economic activity in the internal market that is economically equivalent to the benefit conferred by a financial contribution referred to under point b).
Amendment 131 #
Proposal for a regulation Article 2 – paragraph 2 – point b a (new) (b a) The undertaking(s) concerned received from third countries an aggregate financial contribution in the three calendar years prior to notification of more than EUR50 million.
Amendment 132 #
Proposal for a regulation Article 2 – paragraph 2 a (new) (2 a) The Commission is empowered to adopt a delegated act for the purpose of specifying the definition of economically equivalent support referred to in paragraphs 1 and 2(ba).
Amendment 133 #
Proposal for a regulation Article 2 – paragraph 2 a (new) Amendment 134 #
Proposal for a regulation Article 3 – title Distortions on the internal market and the threat to Member State sovereignty
Amendment 135 #
Proposal for a regulation Article 3 – paragraph 1 – introductory part (1) A distortion on the internal market shall be deemed to exist where a foreign subsidy is liable to improve the competitive position of the undertaking concerned in the internal market and where, in doing so, 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, inter alia, the following:
Amendment 136 #
Proposal for a regulation Article 3 – paragraph 1 – point c a (new) (c a) the sector concerned;
Amendment 137 #
Proposal for a regulation Article 3 – paragraph 1 – point d (d) the level and evolution of economic activity of the undertaking concerned on the internal market;
Amendment 138 #
Proposal for a regulation Article 3 – paragraph 1 – point d a (new) (d a) the level of economic activity of the undertaking concerned on the domestic market;
Amendment 139 #
Proposal for a regulation Article 3 – paragraph 1 a (new) (1a) A breach of Member State sovereignty shall be determined where: (a) one of the Member States reports to the Commission that a foreign subsidy is threatening its sovereignty; (b) a foreign subsidy, through the beneficial entity, is intended to restrict the quantity and quality of information, thereby undermining plurality; (c) that subsidy is likely to create or foster the creation of an entity capable solely by economic power of undermining the free exercise of democracy.
Amendment 140 #
Proposal for a regulation 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 Commission has ascertained that the third country granting the foreign subsidy has in place a system for the review of subsidies that guarantees in law and in practice a level of protection against undue state intervention into market forces and unfair competition which is at least equivalent to the level within the Union and which effectively protects not only the market of the third country but also the internal market of the Union. A Commission decision ascertaining equivalence under point (b) of the first subparagraph shall be valid for three years and may be prolonged, if appropriate.
Amendment 141 #
Proposal for a regulation Article 3 – paragraph 2 (2) A foreign subsidy is unlikely to distort the internal market if its total amount is below
Amendment 142 #
Proposal for a regulation Article 3 – paragraph 2 (2) A foreign subsidy is unlikely to distort the internal market if
Amendment 143 #
Proposal for a regulation Article 3 – paragraph 2 – point a (new) (a) its total amount is below EUR 5 million over any consecutive period of three fiscal years;
Amendment 144 #
Proposal for a regulation Article 3 – paragraph 2 – point b (new) (b) the Commission has ascertained that the third country granting the foreign subsidy has in place a system for the review of subsidies that guarantees in law and in practice a level of protection against undue state intervention into market forces and unfair competition which is at least equivalent to the level within the Union and which effectively protects not only the market of the third country but also the internal market of the Union. A Commission decision ascertaining equivalence under point (b) of the first subparagraph shall be valid for three years and may be prolonged, if appropriate.
Amendment 145 #
Proposal for a regulation Article 3 – paragraph 2 a (new) (2 a) The Commission shall publish guidelines on the application of this Article. Those guidelines shall be regularly updated, in close cooperation with the Member States, while keeping the European Parliament and the Council informed.
Amendment 146 #
Proposal for a regulation Article 3 – paragraph 2 a (new) (2 a) The Commission shall publish guidelines on the application of this Article. Those guidelines shall be regularly updated, in close cooperation with the Member States, while keeping the European Parliament and the Council informed.
Amendment 147 #
Proposal for a regulation Article 3 – paragraph 2 a (new) (2 a) The Commission is empowered to adopt a delegated act for the purpose of specifying and supplementing the indicators referred to in paragraph 1.
Amendment 148 #
Proposal for a regulation Article 3 a (new) Article 3 a The European Commission’s findings of subsidies benefitting third country producers in a given sector made in relevant and recent Trade Defence Instruments (TDIs) investigations, or subsidies documented in reports published by international intergovernmental organizations shall constitute sufficient evidence of distortive subsidies to operators in the countries and sectors concerned having met the relevant threshold.
Amendment 149 #
Proposal for a regulation Article 4 – title Categories of foreign subsidies most likely to distort the internal market or breach Member State sovereignty
Amendment 150 #
Proposal for a regulation Article 4 – paragraph 1 – point 1 (1) a foreign subsidy granted to an ailing undertaking,
Amendment 151 #
Proposal for a regulation Article 4 – paragraph 1 – point 4 (4) a foreign subsidy enabling an undertaking to submit an unduly advantageous tender or an abnormally low tender as defined in the Directive 2014/24/EU, on the basis of which the undertaking would be awarded the public contract.
Amendment 152 #
Proposal for a regulation Article 4 – paragraph 1 – point 4 a (new) (4 a) export credits that are not in line with the OECD Arrangement on officially supported export credits;
Amendment 153 #
Proposal for a regulation Article 5 – paragraph 1 Amendment 154 #
Proposal for a regulation Article 5 – paragraph 1 (1) The
Amendment 155 #
Proposal for a regulation Article 5 – paragraph 1 (1) The Commission shall, where warranted, 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.
Amendment 156 #
Proposal for a regulation 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, where this economic activity is in line with the EU's policy goals.
Amendment 157 #
Proposal for a regulation Article 5 – paragraph 2 (2) The
Amendment 158 #
Proposal for a regulation 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 shall base its analysis on the general principles applied when assessing the compatibility of state aid with the single market.
Amendment 159 #
Proposal for a regulation Article 5 – paragraph 2 (2) The Commission shall take into account the balancing between the negative
Amendment 160 #
Proposal for a regulation Article 5 – paragraph 2 (2) The Commission shall take into account the balancing between the negative and positive effects when deciding whether to adopt a decision to initiate an in-depth investigation as provided for in Article 9, impose redressive measures or to accept commitments, and the nature and level of those redressive measures or commitments.
Amendment 161 #
Proposal for a regulation Article 5 – paragraph 2 a (new) (2 a) The assessment referred to in paragraph 1 shall be disclosed on a dedicated webpage of the Commission. The Commission shall also provide for a justification on the same webpage whenever a balancing test is not carried out pursuant to paragraph 1.
Amendment 162 #
Proposal for a regulation Article 5 – paragraph 2 a (new) (2 a) The Commission shall be empowered to adopt delegated acts under Article 44 of this Regulation to specify how an investigative authority should apply this Article.
Amendment 163 #
Proposal for a regulation Article 5 – paragraph 2 b (new) (2 b) The Commission is empowered to adopt a delegated act for the purpose of specifying the methodology underlying the balancing assessment and in particular for the determination of positive effects referred to in paragraph 1 as well as criteria for outweighing effects.
Amendment 164 #
Proposal for a regulation Article 6 – paragraph 1 (1) To remedy the distortion on the internal market actually or potentially caused by a foreign subsidy, the
Amendment 165 #
Proposal for a regulation Article 6 – paragraph 1 (1) To remedy the distortion on the internal market actually or potentially caused by a foreign subsidy, the Commission
Amendment 166 #
Proposal for a regulation Article 6 – paragraph 1 (1) To remedy the distortion on the internal market actually or potentially caused by a foreign subsidy, the Commission, together with the Member States, may impose redressive measures. The undertaking concerned may also offer commitments.
Amendment 167 #
Proposal for a regulation Article 6 – paragraph 2 (2) Commitments or redressive measures shall fully and effectively remedy the distortion or breach of Member State sovereignty caused by the foreign subsidy in the internal market.
Amendment 168 #
Proposal for a regulation Article 6 – paragraph 3 – point h Amendment 169 #
Proposal for a regulation Article 6 – paragraph 3 – point h a (new) (h a) restricting to participate, directly or indirectly, in new public procurement or concession contract procedures in the internal market.
Amendment 170 #
Proposal for a regulation Article 6 – paragraph 3 – point h a (new) (h a) requiring the undertakings concerned to adapt their governance structure
Amendment 171 #
Proposal for a regulation Article 6 – paragraph 3 – point h a (new) (h a) prohibition of the award of a public contract.
Amendment 172 #
Proposal for a regulation Article 6 – paragraph 4 (4) The
Amendment 173 #
Proposal for a regulation Article 6 – paragraph 5 (5) If an undertaking offers commitments which fully and effectively remedy the distortion on the internal market, the
Amendment 174 #
Proposal for a regulation Article 6 – paragraph 5 (5) If an undertaking offers commitments which fully and effectively remedy the distortion on the internal market, the Commission
Amendment 175 #
Proposal for a regulation Article 6 – paragraph 5 (5) If an undertaking offers
Amendment 176 #
Proposal for a regulation Article 6 – paragraph 6 (6) Where the undertaking concerned proposes to repay the foreign subsidy including an appropriate interest rate, the
Amendment 177 #
Proposal for a regulation Article 7 Amendment 178 #
Proposal for a regulation Article 7 – paragraph 1 The Commission may on its own initiative examine information from any source regarding alleged distortive foreign subsidies. The Commission shall examine information submitted by Member States and social partners. A Member State that is in possession of evidence of the existence of a potentially distortive subsidy, may provide such evidence to the Commission. Each Member State and the Commission shall establish a contact point for the implementation of this Regulation. A secure system shall be provided by the Commission to support direct cooperation and exchange of information between the contact points and the Commission.
Amendment 179 #
Proposal for a regulation Article 7 – paragraph 1 The Commission may on its own initiative examine information from any source regarding alleged distortive foreign subsidies. Where a Member State is in possession of sufficient evidence of a foreign subsidy distorting the internal market, it may request to the Commission to review that evidence. The evidence shall be communicated to the Commission. The Commission shall examine whether there are reasonable grounds to open an in-depth investigation.
Amendment 180 #
Proposal for a regulation Article 7 – paragraph 1 a (new) Any Member State may call on the Commission to conduct an investigation into a foreign subsidy
Amendment 181 #
Proposal for a regulation Article 8 Amendment 182 #
Proposal for a regulation Article 8 – paragraph 2 – introductory part (2) Where the Commission, based on
Amendment 183 #
Proposal for a regulation Article 8 – paragraph 2 – point c (c) publish a notice in the Official Journal of the European Union, which, while respecting confidential company information, invites interested parties, Member States and the third country concerned to express their views in writing within a prescribed period of time
Amendment 184 #
Proposal for a regulation Article 8 – paragraph 3 (3) Where the Commission, after a preliminary assessment, concludes that there are no sufficient grounds to initiate the in-depth investigation, either because there is no foreign subsidy or because there are no indications of an actual or potential distortion on the internal market, it shall close the preliminary review
Amendment 185 #
Proposal for a regulation Article 8 – paragraph 3 a (new) (3a) In the course of the investigation launched by the Commission or other national partner authorities and in the absence of a final verdict confirming such suspicions, the company shall be presumed innocent and shall carry on its business as usual without being prejudiced in any way by the ongoing investigation.
Amendment 186 #
Proposal for a regulation Article 8 – paragraph 3 a (new) (3 a) By [the date of application of this Regulation], the Commission will publish guidance on the criteria to open such a procedure.
Amendment 187 #
Proposal for a regulation Article 9 Amendment 188 #
Proposal for a regulation Article 9 – paragraph 2 (2) Where the Commission finds that a foreign subsidy distorts the internal market pursuant to Articles 3 to 5, it may impose redressive measures (‘decision with redressive measures’) or it may require the company to remedy the situation urgently under strict supervision, within a specified period of time and subject to certain conditions.
Amendment 189 #
Proposal for a regulation Article 9 – paragraph 2 (2) Where the Commission finds that a foreign subsidy distorts the internal market pursuant to Articles 3 to 5, it
Amendment 190 #
Proposal for a regulation Article 10 Amendment 191 #
Proposal for a regulation Article 10 – paragraph 1 – point 1 (1) there are indications that a financial contribution constitutes a foreign subsidy and distorts the internal market;
Amendment 192 #
Proposal for a regulation Article 10 – paragraph 1 – point 2 (2) there is a serious risk of substantial
Amendment 193 #
(2a) there is a risk for small and medium-sized enterprises (SMEs) in that it may unfairly affect their competitive position on the market or result in significant damage to their business.
Amendment 194 #
Proposal for a regulation Article 10 – paragraph 1 – point 2 a (new) (2 a) Interim measures shall be limited in time. They may be prolonged where the indication of distortive effects or the serious risk of substantial and irreparable damage to competition on the internal market continue to exist.
Amendment 195 #
Proposal for a regulation Article 10 – paragraph 1 – point 2 a (new) (2a) if a foreign subsidy if likely to breach the sovereignty of a Member State
Amendment 196 #
Proposal for a regulation Article 11 Amendment 197 #
Proposal for a regulation Article 11 – paragraph 1 (1) The Commission
Amendment 198 #
Proposal for a regulation Article 11 – paragraph 3 – point c a (new) (c a) respect the the principle of proportionality;
Amendment 199 #
Proposal for a regulation Article 11 – paragraph 5 a (new) Amendment 200 #
Proposal for a regulation Article 12 Amendment 201 #
(1)
Amendment 202 #
Proposal for a regulation Article 12 – paragraph 1 (1) The Commission, systematically together with the authorities of the Member States concerned, may conduct the necessary inspections of undertakings.
Amendment 203 #
Proposal for a regulation Article 12 – paragraph 1 (1) The Commission
Amendment 204 #
Proposal for a regulation Article 12 – paragraph 2 – introductory part (2)
Amendment 205 #
Proposal for a regulation Article 12 – paragraph 3 – introductory part (3) The undertaking concerned shall submit to inspections ordered by decision of the Commission. T
Amendment 206 #
Proposal for a regulation Article 12 – paragraph 5 Amendment 207 #
Proposal for a regulation Article 12 – paragraph 6 (6)
Amendment 208 #
Proposal for a regulation Article 12 – paragraph 7 Amendment 209 #
Proposal for a regulation Article 12 – paragraph 7 (7) Upon
Amendment 210 #
Proposal for a regulation Article 12 – paragraph 7 a (new) (7a) Where a Member State has reasons to suspect distortion of the internal market within its territory through the granting of foreign subsidies and does not have the necessary infrastructure, mechanisms and instruments to launch a thorough investigation, it may request the assistance of the European Commission.
Amendment 211 #
Proposal for a regulation Article 13 Amendment 212 #
Proposal for a regulation 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
Amendment 213 #
Proposal for a regulation Article 14 Amendment 214 #
Proposal for a regulation Article 14 – paragraph 1 – introductory part (1) The Commission
Amendment 215 #
Proposal for a regulation Article 14 – paragraph 2 (2) Where an undertaking or association of undertakings, a Member State or the third country has supplied incorrect or misleading information to the Commission, that information shall be disregarded and the appropriate penalties applied.
Amendment 217 #
Proposal for a regulation Article 15 – paragraph 1 – introductory part (1) The Commission, together with the Member States, may impose by decision fines and periodic penalty payments where an undertaking concerned or an association of undertakings, intentionally or negligently:
Amendment 218 #
Proposal for a regulation Article 15 – paragraph 1 – introductory part (1) The Commission
Amendment 219 #
Proposal for a regulation Article 15 – paragraph 2 (2) Fines imposed in the cases referred to in paragraph 1 shall not exceed
Amendment 220 #
Proposal for a regulation Article 15 – paragraph 3 (3) Periodic penalty payments imposed in the cases referred to in paragraph 1 shall not exceed
Amendment 221 #
Proposal for a regulation Article 15 – paragraph 5 – point a (a) fines not exceeding 10 % of the
Amendment 222 #
Proposal for a regulation Article 15 – paragraph 5 – point b (b) periodic penalty payments not exceeding 5% of the average daily
Amendment 223 #
Proposal for a regulation Article 16 Amendment 224 #
Proposal for a regulation Article 16 – paragraph 1 – introductory part The Commission
Amendment 225 #
Proposal for a regulation Article 17 – title Distortions on the internal market or breaches of Member State sovereignty by foreign subsidies in concentrations
Amendment 226 #
Proposal for a regulation 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
Amendment 227 #
Proposal for a regulation 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
Amendment 228 #
Proposal for a regulation Article 18 – paragraph 3 – point a (a) the acquired undertaking or at least one of the merging undertakings is established in the Union and each generates an aggregate turnover in the Union of at least EUR 500 million; and
Amendment 229 #
Proposal for a regulation Article 18 – paragraph 3 – point a (a) the acquired undertaking or at least one of the merging undertakings is established in the Union and generates an aggregate turnover in the Union of at least EUR
Amendment 230 #
Proposal for a regulation Article 18 – paragraph 3 – point a (a) the acquired undertaking or at least one of the merging undertakings is established in the Union and generates an aggregate turnover in the Union of at least EUR 25
Amendment 231 #
Proposal for a regulation Article 18 – paragraph 3 – point a (a) the acquired undertaking or at least one of the merging undertakings is established in the Union and generates an aggregate turnover in the Union of at least
Amendment 232 #
Proposal for a regulation 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 233 #
Proposal for a regulation Article 18 – paragraph 3 – point b (b) the undertakings concerned received
Amendment 234 #
Proposal for a regulation Article 18 – paragraph 3 – point b (b) the undertakings concerned received from third countries an aggregate financial contribution in the three calendar years prior to notification of more than EUR 25
Amendment 235 #
Proposal for a regulation Article 18 – paragraph 3 – point b (b) the undertakings concerned received from third countries an aggregate financial contribution in the three calendar years prior to notification of more than EUR 25
Amendment 236 #
Proposal for a regulation Article 18 – paragraph 3 – point b (b) the undertakings concerned received from third countries an aggregate financial contribution in the three calendar years prior to notification of more than EUR 25
Amendment 237 #
Proposal for a regulation Article 18 – paragraph 4 – point a (a) the joint venture itself or one of its parent undertakings is established in the Union and generates an aggregate turnover in the Union of at least EUR 25
Amendment 238 #
Proposal for a regulation Article 18 – paragraph 4 – point b (b) the joint venture
Amendment 239 #
Proposal for a regulation Article 18 – paragraph 4 – point b (b) the joint venture itself and its parent undertakings received from third countries an aggregate financial contribution in the three calendar years prior to notification of more than EUR 25
Amendment 240 #
Proposal for a regulation Article 18 – paragraph 4 – point b (b) the joint venture itself and its parent undertakings received from third countries an aggregate financial contribution in the three calendar years prior to notification of more than EUR 25
Amendment 241 #
Proposal for a regulation Article 18 – paragraph 4 a (new) (4 a) By way of derogation from paragraphs 3 and 4 of this Article, sector- specific aggregate turnovers in the Union are taken into account for a “notifiable concentration” to be deemed to arise in the field of emerging technologies.
Amendment 242 #
Proposal for a regulation Article 19 – paragraph 1 (1) Notifiable concentrations above the thresholds outlined in Article 18 shall be notified to the Commission prior to their
Amendment 243 #
Proposal for a regulation Article 19 – paragraph 1 a (new) (1 a) Undertakings may request pre- notification consultations with the Commission based on good faith, the exclusive aim of which shall be to establish whether or not the formal thresholds for notification have been met.
Amendment 244 #
Proposal for a regulation Article 19 – paragraph 1 a (new) (1 a) Undertakings may request pre- notification consultations with the Commission based on good faith, the exclusive aim of which shall be to establish whether or not the formal thresholds for notification have been met.
Amendment 245 #
Proposal for a regulation Article 19 – paragraph 2 (2) The undertakings concerned may also notify the proposed concentration when they demonstrate
Amendment 246 #
Proposal for a regulation Article 19 – paragraph 3 a (new) (3 a) Prior to the notification of a concentration within the meaning of paragraph 1, the persons or undertakings referred to in paragraph 2 may inform the Commission, by means of a reasoned submission, that the concentration may significantly affect competition in a market within a Member State which presents all the characteristics of a distinct market and should therefore be examined, in whole or in part, by that Member State. The Commission shall transmit this submission to all Member States without delay.The Member State referred to in the reasoned submission shall, within 15 working days of receiving the submission, express its agreement or disagreement as regards the request to refer the case.Where that Member State takes no such decision within this period, it shall be deemed to have agreed. Unless that Member State disagrees, the Commission, where it considers that such a distinct market exists, and that competition in that market may be significantly affected by the concentration, may decide to refer the whole or part of the case to the competent authorities of that Member State with a view to the application of that State's national competition law. The decision whether or not to refer the case in accordance with the third subparagraph shall be taken within 25 working days starting from the receipt of the reasoned submission by the Commission.The Commission shall inform the other Member States and the persons or undertakings concerned of its decision.If the Commission does not take a decision within this period, it shall be deemed to have adopted a decision to refer the case in accordance with the submission made by the persons or undertakings concerned. If the Commission decides, or is deemed to have decided, pursuant to the third and fourth subparagraphs, to refer the whole of the case, no notification shall be made pursuant toparagraph1 and national competition law shall apply. Article 23a (6) to (9) shall apply mutatis mutandis.
Amendment 247 #
Proposal for a regulation Article 19 – paragraph 4 Amendment 248 #
Proposal for a regulation Article 19 – paragraph 4 (4) If the undertakings concerned fail to meet their obligation to notify, the Commission
Amendment 249 #
Proposal for a regulation Article 19 – paragraph 4 (4) If the undertakings concerned fail to meet their obligation to notify, the Commission
Amendment 250 #
Proposal for a regulation 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 where there are reasonable grounds to suspect that an undertaking will benefit from foreign subsidies in the year following the concentration. That concentration shall be deemed to be a notifiable concentration for the purposes of this Regulation.
Amendment 251 #
Proposal for a regulation 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. That concentration shall be deemed to be a notifiable concentration for the purposes of this Regulation. By [the date of application of this Regulation], the Commission shall publish guidance on the criteria to require such a notification.
Amendment 252 #
Proposal for a regulation Article 22 – paragraph 1 The aggregate financial contribution to an undertaking concerned shall be calculated by adding together the respective financial contributions in the form of distortive State aid received from third countries by all undertakings referred to in Article 21(4), points (a) to (e).
Amendment 253 #
Proposal for a regulation Article 22 – paragraph 1 The aggregate f
Amendment 254 #
(8 a) Each preliminary review or in- depth investigation is communicated to the Member States that may be concerned
Amendment 255 #
Proposal for a regulation Article 23 a (new) Amendment 256 #
Proposal for a regulation Article 25 – paragraph 2 (2) In addition, the Commission may impose fines by decision on undertakings
Amendment 257 #
Proposal for a regulation Article 25 – paragraph 2 (2) In addition, the Commission may impose by decision on undertakings concerned fines not exceeding 1 % of the
Amendment 258 #
Proposal for a regulation Article 25 – paragraph 3 – introductory part (3) The Commission may impose by decision on undertakings concerned fines not exceeding 10 % of the
Amendment 259 #
Proposal for a regulation Article 26 – title Distortions on the internal market by foreign subsidies or breaches of Member State sovereignty in public procurement procedures
Amendment 260 #
Proposal for a regulation 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 250 million and the undertaking concerned received from third countries an aggregate financial contribution in the three calendar years prior to notification of more than EUR 50 million.
Amendment 261 #
Proposal for a regulation 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
Amendment 262 #
Proposal for a regulation 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
Amendment 263 #
Proposal for a regulation 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
Amendment 264 #
Proposal for a regulation 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 3
Amendment 265 #
Proposal for a regulation Article 28 – paragraph 4 (4) The contracting authority or the contracting entity shall transfer the notification to the
Amendment 266 #
Proposal for a regulation Article 28 – paragraph 5 (5) Where the undertaking, economic operators or groups of economic operators referred to in paragraph 1 fail to notify a foreign financial contribution,
Amendment 267 #
Proposal for a regulation Article 28 – paragraph 6 (6) Where the
Amendment 268 #
Proposal for a regulation Article 29 – paragraph 2 (2) The
Amendment 269 #
Proposal for a regulation Article 29 – paragraph 2 (2) The Commission shall carry out a preliminary review no later than
Amendment 270 #
Proposal for a regulation Article 29 – paragraph 2 a (new) (2 a) In both procedures under Articles 19 and 28, the Commission shall involve the Member States in the examination procedure and shall maintain a regular exchange of information with them.
Amendment 271 #
Proposal for a regulation Article 29 – paragraph 3 (3) The
Amendment 272 #
Proposal for a regulation Article 29 – paragraph 4 (4) The
Amendment 273 #
Proposal for a regulation Article 29 – paragraph 4 (4) The Commission may adopt a decision closing the in-depth investigation no later than
Amendment 274 #
Proposal for a regulation Article 30 – paragraph 1 (1) Where, after an in-depth investigation, the
Amendment 275 #
Proposal for a regulation Article 30 – paragraph 2 (2) Where the undertaking concerned does not offer commitments or where the
Amendment 276 #
Proposal for a regulation Article 30 – paragraph 3 (3) Where, after an in-depth investigation, the
Amendment 277 #
Proposal for a regulation Article 31 – paragraph 2 (2) If a decision to open an in-depth investigation is taken pursuant to Article 29(3), the contract shall not be awarded to an undertaking submitting a notification under Article 28 until the
Amendment 278 #
Proposal for a regulation Article 31 – paragraph 3 (3) The contract may be awarded to an undertaking submitting a declaration under Article 28 before the
Amendment 279 #
Proposal for a regulation Article 31 – paragraph 4 (4) Where the
Amendment 280 #
Proposal for a regulation Article 31 – paragraph 5 (5) Where the
Amendment 281 #
Proposal for a regulation Article 31 – paragraph 6 (6) In all cases, the contracting authority or the contracting entity shall inform the
Amendment 282 #
Proposal for a regulation Article 31 – paragraph 8 (8) Each time limit shall begin on the working day following that of the receipt of the notification or of the adoption of the relevant
Amendment 283 #
Proposal for a regulation Article 32 – paragraph 1 (1) The
Amendment 284 #
Proposal for a regulation Article 32 – paragraph 2 (2) In addition, the
Amendment 285 #
Proposal for a regulation Article 32 – paragraph 3 (3) The
Amendment 286 #
Proposal for a regulation 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
Amendment 287 #
Proposal for a regulation Article 33 – paragraph 1 (1) A financial contribution notified in the context of a concentration under Articles 18 and 19 may be relevant and assessed again in relation to another economic activity.
Amendment 288 #
Proposal for a regulation Article 33 – paragraph 1 (1) A
Amendment 289 #
Proposal for a regulation Article 33 – paragraph 2 (2) A financial contribution notified in the context of a public procurement procedure under Articles 27 and 28 may be relevant and assessed again in relation to another economic activity.
Amendment 290 #
Proposal for a regulation Article 34 – paragraph 1 (1) Where the information available substantiates a reasonable suspicion that foreign subsidies above the thresholds established in this regulation, in a particular sector, for a particular type of economic activity or based on a particular subsidy instrument may distort the internal market, the
Amendment 291 #
Proposal for a regulation 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
Amendment 292 #
Proposal for a regulation Article 34 – paragraph 2 (2) The
Amendment 293 #
Proposal for a regulation Article 34 – paragraph 2 (2) The Commission
Amendment 294 #
Proposal for a regulation Article 34 – paragraph 3 (3) The
Amendment 295 #
Proposal for a regulation Article 34 – paragraph 3 (3) The Commission
Amendment 296 #
Proposal for a regulation Article 35 – paragraph 1 (1) The powers
Amendment 297 #
Proposal for a regulation Article 35 – paragraph 2 (2) The powers of the Commission to impose fines and periodic penalty payments under Articles 15, 25 and 32 shall be subject to a limitation period of
Amendment 298 #
Proposal for a regulation Article 35 – paragraph 2 (2) The powers
Amendment 299 #
Proposal for a regulation Article 35 – paragraph 3 (3) The powers of the
Amendment 300 #
Proposal for a regulation Article 36 – paragraph 1 (1)
Amendment 301 #
Proposal for a regulation Article 36 – paragraph 2 (2)
Amendment 302 #
Proposal for a regulation Article 36 – paragraph 2 a (new) (2 a) The Commission shall publish either in full or in a summary form all decisions adopted by the different investigative authorities.
Amendment 303 #
Proposal for a regulation Article 36 – paragraph 3 (3) When publishing summary notices and decisions,
Amendment 304 #
Proposal for a regulation Article 37 – paragraph 1 (1) Decisions adopted pursuant to Articles 8, 9, 15, 24(3), 25, 30(1) and 32 shall be addressed to the undertakings or to the association of undertakings concerned. The
Amendment 305 #
(2) Decisions adopted pursuant to Article 30(2) and (3) shall be addressed to the contracting authority or the contracting entity concerned. The
Amendment 306 #
Proposal for a regulation Article 38 – paragraph 1 (1) The
Amendment 307 #
Proposal for a regulation Article 38 – paragraph 2 (2) The
Amendment 308 #
Proposal for a regulation Article 42 – paragraph 1 – point e Amendment 309 #
Proposal for a regulation Article 42 – paragraph 1 – point f Amendment 310 #
Proposal for a regulation Article 42 – paragraph 1 – point g Amendment 311 #
Proposal for a regulation Article 44 – paragraph 1 – point a Amendment 312 #
Proposal for a regulation Article 44 – paragraph 1 – point a a (new) (a a) specifying the methodologies and indicators referred to under Articles 2, 3 and 5;
Amendment 313 #
Proposal for a regulation Article 44 – paragraph 1 – point b Amendment 314 #
Proposal for a regulation Article 44 – paragraph 1 – point c Amendment 315 #
Proposal for a regulation Article 44 – paragraph 1 – point c a (new) (c a) specifying the methodologies and indicators referred to under Articles 2, 3 and 5.
Amendment 316 #
Proposal for a regulation Article 44 – paragraph 1 – point c a (new) (c a) determining the structure of a communication network between the different competent authorities;
Amendment 317 #
Proposal for a regulation Article 44 – paragraph 1 – point c b (new) (c b) establishing detailed rules on the calculation of time limits;
Amendment 318 #
Proposal for a regulation Article 44 – paragraph 1 – point c c (new) (c c) determining the conditions and time limits for proposing commitments under Article 30;
Amendment 319 #
Proposal for a regulation Article 44 – paragraph 1 – point c d (new) Amendment 320 #
Proposal for a regulation Article 44 – paragraph 1 – point c e (new) (c e) specifying the application of the balancing tool outlined in Article 5.
Amendment 321 #
Proposal for a regulation Article 45 Amendment 322 #
Proposal for a regulation Article 46 – paragraph 1 Amendment 323 #
Proposal for a regulation Article 46 – paragraph 1 Amendment 324 #
Proposal for a regulation Article 46 – paragraph 1 Amendment 325 #
Proposal for a regulation Article 46 – paragraph 1 Amendment 326 #
Proposal for a regulation Article 46 – paragraph 1 a (new) Where the report referred to in paragraph 1 recommends amendments to this Regulation and where the Commission considers it appropriate in light of its practice during the application of this Regulation and taking into account the effectiveness of application, the report may be accompanied by relevant legislative proposals, including: a) to amend the thresholds for notifications as set out in Articles 18 and 27; b) to exempt certain categories of undertakings concerned from the obligation to notify pursuant to Articles 19 and 28, especially where the practice of the Commission enables the identification of economic activities in respect of which foreign subsidies are unlikely to distort the internal market; c) to establish specific thresholds for notifications for certain economic sectors, especially where the practice of the Commission enables the identification of economic activities in respect of which foreign subsidies are more likely to distort the internal market; d) to amend the timelines for review and in-depth investigations as set out in Articles 24 and 29; e) to repeal this Regulation if the Commission considers that multilateral rules to address distortive subsidies have rendered this Regulation fully redundant.
Amendment 327 #
Proposal for a regulation Article 47 – paragraph 1 (1) This Regulation shall apply to foreign subsidies granted in the
Amendment 328 #
Proposal for a regulation Article 47 – paragraph 3 (3)
Amendment 40 #
Proposal for a regulation Recital 1 (1)
Amendment 41 #
Proposal for a regulation Recital 1 (1) A strong, open and competitive internal market enables
Amendment 42 #
Proposal for a regulation Recital 2 (2) At the same time, undertakings might receive subsidies from third countries, that provide public funds which are then used, for instance, to finance economic activities in the internal market in any sector of the economy, such as participation in public procurement tenders, or acquisitions of undertakings, including those with strategic assets such as critical infrastructure and innovative technologies. Such subsidies, including monetary financing of an economy to artificially lower the production costs, are currently not subject to Union State aid rules.
Amendment 43 #
Proposal for a regulation Recital 2 (2) At the same time, undertakings might receive subsidies from third countries
Amendment 44 #
Proposal for a regulation Recital 2 (2) At the same time, undertakings might receive subsidies from third countries, that provide public funds which are then used, for instance, to finance economic activities in the internal market in any sector of the economy, such as participation in public procurement tenders, or acquisitions of undertakings, including those with strategic assets such as critical infrastructure and innovative technologies. Such subsidies are currently not subject to Union State aid rules. Similar concerns apply in relation to state-owned enterprises.
Amendment 45 #
Proposal for a regulation Recital 2 a (new) (2a) Points out that competition policies were originally intended to prevent foreign and domestic powers from being able to undermine national sovereignty or the democratic exercise of popular sovereignty.
Amendment 46 #
Proposal for a regulation Recital 3 (3) Foreign subsidies can distort the internal market
Amendment 47 #
Proposal for a regulation 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.
Amendment 48 #
Proposal for a regulation Recital 4 (4) No existing Union instruments address distortions or breaches of Member State sovereignty caused by foreign subsidies. Trade defence instruments enable the Commission to act when subsidised goods are imported into the Union, but not when foreign subsidies take the form of subsidised investments, or when services and financial flows are concerned. Under the WTO Agreement on Subsidies and Countervailing Measures, the Union has the possibility to initiate State-to-State dispute settlement against certain foreign subsidies granted by WTO members and limited to goods.
Amendment 49 #
Proposal for a regulation Recital 4 (4)
Amendment 50 #
Proposal for a regulation Recital 5 (5) It is therefore necessary to
Amendment 51 #
Proposal for a regulation 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
Amendment 52 #
Proposal for a regulation Recital 5 (5) It
Amendment 53 #
Proposal for a regulation Recital 6 (6) Rules and procedures to investigate foreign subsidies that actually or
Amendment 54 #
Proposal for a regulation Recital 7 Amendment 55 #
Proposal for a regulation Recital 7 (7) To ensure a level playing field throughout the internal market and consistency in the application of this Regulation, the Commission should
Amendment 56 #
Proposal for a regulation Recital 7 (7) To ensure a level playing field throughout the internal market and consistency in the application of this Regulation, the Commission should be the
Amendment 57 #
Proposal for a regulation Recital 7 (7) To ensure a level playing field throughout the internal market and consistency in the application of this Regulation, the Commission should
Amendment 58 #
Proposal for a regulation Recital 7 a (new) (7 a) The competent authority having the power to investigate and redress foreign subsidies that have a Union dimension, and thereby distort the internal market, is the European Commission. A Union dimension is established when a clear impact on the internal market has been recognised, as based on the notification thresholds listed in this Regulation. National competent authorities should be empowered to investigate and redress the foreign subsidies, if the subsidy has a distortive effect on the internal market without meeting the notification thresholds listed in this Regulation, or if the investigated foreign subsidy involves only one specific Member State. In the latter case, the Commission may also refer a notification to the competent authority of the Member State concerned. In this Regulation the reference to the competent authority will be the investigative authority unless otherwise specifically indicated.
Amendment 59 #
Proposal for a regulation Recital 7 b (new) (7 b) A structured communication network between investigative authorities should be established.
Amendment 60 #
Proposal for a regulation Recital 9 (9) There should be a financial contribution or an economically equivalent support provided, directly or indirectly, by the public authorities of a third country. The financial contribution or the economically equivalent support 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 contribution
Amendment 61 #
Proposal for a regulation 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 in the form of a foreign subsidy may also be granted through a private entity if its actions can be attributed to the third country.
Amendment 62 #
Proposal for a regulation Recital 9 (9) There should be a financial contribution, or loan, 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.
Amendment 63 #
Proposal for a regulation 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. Corporate bonds bought by a foreign central bank should also be considered as financial contributions.
Amendment 64 #
Proposal for a regulation Recital 10 (10) Such a financial contribution or economically equivalent support should confer a benefit to an undertaking engaging in an economic activity in the internal market. A financial contribution or economically equivalent support that benefit
Amendment 65 #
Proposal for a regulation Recital 10 (10) Such a financial contribution should confer a benefit to an undertaking engaging in an economic activity in the internal market.
Amendment 66 #
Proposal for a regulation Recital 10 (10) Such a financial contribution, or loan, 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-
Amendment 67 #
Proposal for a regulation Recital 10 a (new) (10 a) Such a financial contribution should also include a situation where the beneficiary has privileged access to its domestic market, for example through exclusive or special rights or equivalent measures, for the provision of goods or services in the third country conferred by national law or the benefit of a domestic captive market due to the prevailing legal and economic conditions. This could lead to a competitive advantage that could be leveraged in the EU internal market and thereby exacerbate the distortive effect of any subsidy.
Amendment 68 #
Proposal for a regulation Recital 11 a (new) (11 a) Foreign subsidies to undertakings supplying energy to the Member States should be exempt from this Regulation;
Amendment 69 #
Proposal for a regulation Recital 12 (12) Once the existence of a foreign subsidy is established, the Commission, together with the Member States, 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
Amendment 70 #
Proposal for a regulation 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. If the threshold for notification is not met, the case can be referred by the Commission to the national competition authorities of the relevant Member States.
Amendment 71 #
Proposal for a regulation 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 and equally difficult for companies to identify all the relevant subsidies. 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
Amendment 72 #
Proposal for a regulation 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
Amendment 73 #
Proposal for a regulation Recital 14 (14) When applying these indicators, the
Amendment 74 #
Proposal for a regulation Recital 15 a (new) (15 a) Goods and services from third countries entering the internal market should respect core labour and environmental standards in public procurement.
Amendment 75 #
(16) The
Amendment 76 #
Proposal for a regulation 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, where the subsidised activity is in line with EU policy objectives. 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
Amendment 77 #
Proposal for a regulation 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 to 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
Amendment 78 #
Proposal for a regulation 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 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 on the application of the balancing test.
Amendment 79 #
Proposal for a regulation Recital 17 Amendment 80 #
Proposal for a regulation Recital 17 (17) Where the Commission examines a foreign subsidy on its own initiative, it should have the power to impose redressive measures on an undertaking to remedy any distortion or breach of Member State sovereignty caused by a foreign subsidy in the internal market. Redressive measures should be proportionate and suitable to remedy the
Amendment 81 #
Proposal for a regulation Recital 18 (18) The undertaking concerned should have the possibility to offer commitments in order to remedy the distortion or breach of Member State sovereignty caused by the foreign subsidy. If the Commission, together with the Member States, considers that the commitments offered fully and effectively remedy the distortion, it could accept them and make them binding by decision.
Amendment 82 #
Proposal for a regulation Recital 18 (18) The undertaking concerned should have the possibility to offer commitments in order to remedy the distortion caused by the foreign subsidy. If the
Amendment 83 #
Proposal for a regulation Recital 19 (19) The undertaking concerned could offer to repay the subsidy, together with appropriate interest. The
Amendment 84 #
Proposal for a regulation Recital 20 (20) Unless the undertakings concerned offer commitments that would fully and effectively remedy the identified distortion or breach of Member State sovereignty, the Commission should have the power to prohibit a concentration or the award of a public contract before it takes place. Where the concentration has already been implemented, notably in cases where no prior notification was required because the notification thresholds were not reached, the distortion may nonetheless be so substantial that it cannot be remedied by behavioural or structural measures or by the repayment of the subsidy. In such cases, the Commission, together with the Member States, could decide to remedy the distortion by ordering the undertakings concerned to dissolve the concentration.
Amendment 85 #
Proposal for a regulation Recital 20 (20) Unless the undertakings concerned offer commitments that would fully and effectively remedy the identified distortion, the
Amendment 86 #
Proposal for a regulation Recital 21 (21) The
Amendment 87 #
Proposal for a regulation 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 should publish guidance on the criteria to open such a procedure.
Amendment 88 #
Proposal for a regulation Recital 22 (22) The
Amendment 89 #
Proposal for a regulation Recital 22 (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
Amendment 90 #
Proposal for a regulation Recital 23 (23) Furthermore, where necessary to restore competition in the internal market immediately and to prevent irreparable harm, the
Amendment 91 #
Proposal for a regulation Recital 24 (24) In all cases where, as a result of the preliminary review, the
Amendment 92 #
Proposal for a regulation Recital 24 (24) In all cases where, as a result of the preliminary review, the Commission has sufficient indications of the existence of a foreign subsidy distorting the internal market, the Commission should have the power to launch an in-depth investigation to gather additional relevant information to assess the foreign subsidy, and to allow the interested parties to exercise their rights of defence. Such in-depth investigations should be concluded swiftly in order not to put on hold the underlying economic activities for too long.
Amendment 93 #
Proposal for a regulation Recital 25 (25) The
Amendment 94 #
Proposal for a regulation 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, together with the Member States, should have the power to impose fines and periodic penalty payments.
Amendment 95 #
Proposal for a regulation Recital 26 (26) The
Amendment 96 #
Proposal for a regulation Recital 27 (27) In order to ensure the correct and effective application of this Regulation, the
Amendment 97 #
Proposal for a regulation Recital 28 (28) Given the potentially significant impact of concentrations on the internal market and Member State sovereignty, the Commission should have the power, upon notification, to examine information on foreign financial contributions in the context of a proposed concentration. Undertakings should not be allowed to implement the concentration prior to the conclusion of the Commission’s review.
Amendment 98 #
Proposal for a regulation Recital 28 (28) Given the potentially significant impact of concentrations on the internal market, the
Amendment 99 #
Proposal for a regulation Recital 29 (29) This examination by the
source: 704.816
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History
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https://www.europarl.europa.eu/doceo/document/JURI-AD-704679_EN.html
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https://www.europarl.europa.eu/doceo/document/ECON-AD-700661_EN.html
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https://www.europarl.europa.eu/doceo/document/IMCO-AD-703070_EN.html
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https://www.europarl.europa.eu/doceo/document/JURI-AD-704679_EN.html
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https://www.europarl.europa.eu/doceo/document/INTA-AM-719564_EN.html
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False
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