Samuel R Beighton
Partner
Head of Competition, Foreign Investment & Trade
Co-lead of the Family Matters network
Article
20
The EU Foreign Subsidies Regulation[1] (the "FSR") entered into full force in October 2023. We take a detailed look at what this means for foreign transactions in the EU.
In essence, the FSR seeks to ensure that foreign subsidies (i.e. subsidies granted to undertakings[2] by non-EU Member States) do not undermine the "level playing field" of the EU internal market.
For example, if a business active within the EU received a high value subsidy from a non-EU government, this foreign subsidy could have a distortive effect upon the EU internal market.
Subject to limited exceptions, the FSR therefore enables the European Commission (the "Commission") to:
The FSR also introduces specific notification requirements in relation to certain transactions, and in the context of public procurement procedures.
Where a transaction triggers a notification requirement under the FSR, that transaction cannot be implemented until it has been approved by the Commission.
A failure to observe this "standstill" requirement under the FSR may result in the Commission imposing a fine upon the undertaking concerned of up to 10% of its group worldwide turnover.
The thresholds that need to be satisfied for a transaction to trigger a notification requirement under the FSR are considered further below.
Importantly, the FSR operates in addition to: (i) the existing EU competition law, State aid and merger control regimes; and (ii) any applicable regimes in EU Member States (e.g. domestic foreign investment screening laws).
With this in mind, parties planning transactions will need to carefully consider whether any notification and "standstill" requirements arise under the FSR, in addition to any other relevant notification and "standstill" requirements, and factor all such relevant obligations into the transaction timeline.
Even where a transaction does not trigger a notification requirement under the FSR, parties should have in mind the possibility of the Commission opening an investigation of its own volition (a so-called ex officio investigation, as outlined further below), and ensure that any associated risks are considered and mitigated insofar as possible when planning the transaction.
The following thresholds apply to determine whether a transaction triggers a notification requirement under the FSR.
Is there a relevant transaction, specifically: (i) a merger; (ii) an acquisition; or (iii) the creation of a full-function joint venture ("JV") within the meaning of the EU Merger Regulation[3] ("EUMR ")?
If the transaction does not result in a change of control on a lasting basis, or does not constitute the creation of a full-function joint venture, then it will fall outside of the notification requirement.
Depending upon the relevant transaction, are any of the following established in the EU with an aggregate EU turnover of at least EUR 500 million in its most recently completed financial year?
The Commission has confirmed that an entity is "established in the EU" if it has a subsidiary within the EU, or has a permanent place of business within the EU.
If not, then the transaction will fall outside of the notification requirement.
Depending upon the relevant transaction, does the value of the combined aggregate financial contributions provided by non-EU countries to the relevant entities exceed EUR 50 million in the three years prior to: (i) the conclusion of the agreement; (ii) the announcement of the public bid; or (iii) the acquisition of a controlling interest?
If the relevant value does not exceed EUR 50 million, then the transaction will fall outside of the notification requirement.
In this context, financial contributions will include: (i) transfers of funds or liabilities (e.g. capital injections; grants; loans); (ii) the foregoing of revenues that are otherwise due (e.g. tax exemptions), or the granting of special or exclusive rights without receiving adequate remuneration; and (iii) the provision or purchase of goods or services, even where these have been purchased by a public authority following a genuinely competitive, transparent, and non-discriminatory tender procedure.
Financial contributions provided by a non-EU country will include financial contributions provided by:
A financial contribution is provided by a non-EU country from the time at which the beneficiary obtains a legal entitlement to receive the financial contribution; the actual receipt of a financial contribution is not required to bring this within the scope of the FSR.
A relevant transaction will therefore trigger a notification and "standstill" requirement under the FSR where:
Where these thresholds are satisfied, the transaction must be notified to the Commission using a Form FS-CO, which sets out the information and supporting documentation to be provided (with the supporting documentation including certain of the parties' internal documents).
As noted above, the transaction cannot be implemented until it has been approved by the Commission, and a failure to observe this "standstill" requirement may result in the imposition of a fine upon the undertaking concerned of up to 10% of its group worldwide turnover achieved in the preceding financial year.
Parties are encouraged to engage in pre-notification discussions with the Commission, focussing upon a draft Form FS-CO completed by the parties.
Pre-notification discussions enable the parties to raise issues with the case team, and provide additional information in response to the case team's requests, so as to seek to ensure that the finalised Form FS-CO will be accepted as complete by the Commission.
The FSR does not set out any timelines for pre-notification discussions, and each notification will be subject to its own facts and circumstances.
However, the Commission's case team will aim to conclude pre-notifications discussions as promptly as possible, in order to enable the Commission to commence its review of the transaction (once formally notified and accepted as complete).
Once a notification has been accepted as complete (usually following pre-notification discussions with the case team):
While the timelines under the FSR (at least in theory) broadly align with those under the EUMR , in practice there is no certainty that an FSR assessment will run in parallel with an assessment under the EUMR , particularly as the two regimes address different concerns.
Outside of the notification requirement, the Commission can open an ex officio investigation if it receives information regarding alleged foreign subsidies distorting the EU internal market.[6]
In the context of an ex officio investigation, the Commission is able to request information from various sources (e.g. the undertakings under investigation, trade associations, EU Member States, and non-EU countries), and proceed to conduct a preliminary assessment.
The FSR also permits the Commission to exercise powers to attend and gather information, including: (i) undertaking physical inspections of business premises; (ii) examining business records; and (iii) asking individuals for explanations of facts or documents.
The Commission can exercise these powers in the context of ex officio investigations (as well as investigations into notified transactions), and these powers are exercisable by the Commission: (i) within the EU; and (ii) outside of the EU, provided that the Commission has officially notified the government of the non-EU country in question, and the government has not objected.
If the Commission proceeds to open an in-depth ex officio investigation following its preliminary assessment of the transaction, the Commission may subsequently decide to:
and the Commission will endeavour to adopt a decision within 18 months of opening this in-depth investigation.
While the FSR uses financial contributions provided by non-EU countries to determine whether a notification is required (as outlined above), the substantive focus of an investigation is upon the extent of any foreign subsidies provided by non-EU countries, irrespective of whether the transaction is notified to the Commission, or is the subject of an ex officio investigation by the Commission.[7]
For the purposes of the FSR:
"a foreign subsidy shall be deemed to exist where a [non-EU country] provides, directly or indirectly, a financial contribution which confers a benefit on an undertaking engaging in an economic activity in the internal market and which is limited, in law or in fact, to one or more undertakings or industries".[8]
Therefore, if a non-EU country purchased services from an undertaking in accordance with normal market conditions (e.g. following a genuinely competitive, transparent, and non-discriminatory tender procedure), the income that the undertaking received from those sales:
Where a foreign subsidy exists (e.g. if a non-EU country purchased services from an undertaking on conditions that were clearly more favourable than normal market conditions), the Commission will assess whether that subsidy would actually or potentially distort the EU internal market.
A distortion in the EU internal market will be deemed to exist under the FSR where:
"a foreign subsidy is liable to improve the competitive position of an undertaking in the internal market and where, in doing so, that foreign subsidy actually or potentially negatively affects competition in the internal market".[9]
The Commission is able to conduct its assessment by reference to a range of factors, including:
Examples of foreign subsidies that are most likely to be considered distortive for the purposes of the FSR include where the subsidy in question is:
If the Commission considers that a foreign subsidy would actually or potentially distort the EU internal market, it may proceed to balance the effects of that subsidy against any positive effects of the subsidy (e.g. in relation to the development of the relevant economic activity within the EU internal market).
The Commission may also consider any other positive effects of the subsidy in the context of relevant policy objectives, including EU-level policy objectives.
Where the Commission has undertaken this balancing test, it shall bear in mind the outcome when deciding whether to impose remedies, or to accept any offered commitments.
If you have any questions surrounding the information discussed in this article, please contact Samuel Beighton or Bernardine Adkins.
Footnotes
[1] Regulation (EU) 2022/2560.
[2] The concept of an "undertaking" exists within EU competition law, and "covers any entity engaged in an economic activity, irrespective of the legal status of that entity and the way in which it is financed, and thus defines an economic unit even if in law that economic unit consists of several persons, natural or legal …That economic unit consists of a unitary organisation of personal, tangible and intangible elements, which pursues a specific economic aim on a long-term basis". See, Case C‑882/19 Sumal SL v Mercedes Benz Trucks España SL ECLI:EU:C:2021:800.
[3] See, Article 3, Council Regulation (EC) No. 139/2004.
[4] Commencing the working day after receipt of the complete notification.
[5] Commencing the working day after its decision to open an in-depth investigation.
[6] Where there are sufficient indications that a financial contribution constitutes a foreign subsidy and distorts the EU internal market, and there is a risk of serious and irreparable damage to competition on the EU internal market, the Commission may decide to impose interim measures (e.g. pending the outcome of an investigation) in order to preserve competition and prevent irreparable damage.
[7] Foreign subsidies that fall within the scope of the WTO Agreement on Subsidies and Countervailing Measures cannot be remedied under the FSR. However, where such subsidies constitute financial contributions provided by non-EU countries, then they must be taken into account when determining whether the notification thresholds are satisfied.
[8] See, Article 3(1), FSR.
[9] See, Article 4(1), FSR.
CECI NE CONSTITUE PAS UN AVIS JURIDIQUE. L'information qui est présentée dans le site Web sous quelque forme que ce soit est fournie à titre informatif uniquement. Elle ne constitue pas un avis juridique et ne devrait pas être interprétée comme tel. Aucun utilisateur ne devrait prendre ou négliger de prendre des décisions en se fiant uniquement à ces renseignements, ni ignorer les conseils juridiques d'un professionnel ou tarder à consulter un professionnel sur la base de ce qu'il a lu dans ce site Web. Les professionnels de Gowling WLG seront heureux de discuter avec l'utilisateur des différentes options possibles concernant certaines questions juridiques précises.