52 Amendments of Margarida MARQUES related to 2021/0114(COD)
Amendment 75 #
Proposal for a regulation
Recital 9
Recital 9
(9) There should be a financial contribution provided, directly or indirectly, by the public authorities of a third country. The financial contribution may be granted through public or private entities. Whether a public entity provides a financial contribution should be determined on a case-by-case basis with due regard to elements such as the characteristics of the relevant entity and the legal and economic environment prevailing in the 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. A dominant market position in a third country such as a monopoly could also be considered as a financial contribution.
Amendment 90 #
Proposal for a regulation
Recital 16
Recital 16
(16) TIn exceptional cases the Commission shcould take into account the positive effects of the foreign subsidy on the development of the relevant subsidised economic activity, where it relates to the fulfilment of public policy objectives. The Commission shcould 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. The Commission should reach any such conclusion in close cooperation with the Member State(s) concerned. Categories of foreign subsidies that are deemed most likely to distort the internal market are less likely to have more positive than negative effects.
Amendment 111 #
Proposal for a regulation
Recital 22
Recital 22
(22) The Commission should be given adequate investigative powers and resources to gather all necessary information. It should therefore have the power to request information from any undertaking or association of undertakings throughout the whole procedure. In addition, the Commission should have the power to impose fines and periodic penalty payments for failure to timely supply the requested information or for supplying incomplete, incorrect or misleading information. The Commission could also address questions to Member States or to third countries. Furthermore, the Commission should have the power to make fact-finding visits at the Union premises of the undertaking, or, subject to agreement by the undertaking and the third country concerned, at the premises of the undertaking in the third country. The Commission should also have the power to take decisions on the basis of facts available if the undertaking in question does not cooperate.
Amendment 130 #
Proposal for a regulation
Recital 32
Recital 32
(32) When reviewing a concentration, the assessment of whether there is a distortion in the internal market should be limited to the concentration at stake, and only foreign subsidies granted in the three years prior to the concentration or future subsidies which have been approved and will become effective within one year of the concentration, should be considered in the assessment.
Amendment 139 #
Proposal for a regulation
Recital 35
Recital 35
(35) It should be ensured that the principles governing public procurement, notably proportionality, non- discrimination, equal treatment, and transparency, are respected, and compliance to applicable environmental, social and labour law and standards, as regards all undertakings involved in the public procurement procedure, regardless of investigations initiated and pending pursuant to this Regulation.
Amendment 154 #
Proposal for a regulation
Recital 48
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 both through notifications as well as ex officio, the power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the CommissionCommission should evaluate the functioning and effectiveness of this Regulation at the latest three years after its entry into force, and every two years thereafter, and present that evaluation by means of a report to the European Parliament and the Council. That report should include an assessment of whether or not this Regulation should be amended. Where the report proposes amending the Regulation, it may be accompanied by a legislative proposal, in particular in respect of amending the notification thresholds for concentrations and for public procurement procedures, exempting certain categories of undertakings from the notification obligations under this Regulation, introducing lower notification thresholds specific to certain economic sectors, as well as amending the time limits for the preliminary review and the in-depth investigations of notified concentrations or notified financial contributions in the context of a public procurement procedure. In relation to financial contributions in the context of a public procurement procedure, the power to adopt such actsevaluation should be exercisconducted in a way that takes into account the interests of SMEs. ItDuring its of particular importance that the Commission carries out appropriate consultations during the preparations of those acts, including at expert level, and that those consevaluation, the Commission should consider to abrogate the present Regultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making47 . In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council should receive all documents at the same time as Member States' experts, and their experts systematically should have access to meetings of Commission expert groups dealing with the preparation of delegated acts. _________________ 47 Interinstitutional Agreement between the European Parliament, the Council of the European Union and the European Commission of 13 April 2016 on Better Law-Making (OJ L 123, 12.5.2016, p. 1), if it considers that the development of multilateral rules to address distortive subsidies has rendered this Regulation fully redundant.
Amendment 181 #
Proposal for a regulation
Article 2 – paragraph 2 – point a – point iii a (new)
Article 2 – paragraph 2 – point a – point iii a (new)
(iii a) (iii a) the benefit of a domestic captive market in the third country, such as a monopoly position
Amendment 202 #
Proposal for a regulation
Article 3 – paragraph 1 – point d
Article 3 – paragraph 1 – point d
(d) the level and evolution of economic activity of the undertaking concerned on the internal market;
Amendment 213 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
(2 a) To ensure efficiency and transparency, 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 informed.
Amendment 226 #
Proposal for a regulation
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
a foreign subsidy from countries which are not signatories to the OECD arrangement on officially supported export credits;
Amendment 228 #
Proposal for a regulation
Article 4 – paragraph 1 b (new)
Article 4 – paragraph 1 b (new)
a foreign subsidy in sectors with structural overcapacity;
Amendment 229 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
(1) TIn exceptional circumstances the Commission shallmay, 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 for the fulfilment of public policy objectives.
Amendment 247 #
Proposal for a regulation
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
(2 a) The Commission shall undertake such assessment in close cooperation with Member States and the European Parliament.
Amendment 252 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
(1) TWithout prejudice to Article 5, the Commission shall impose redressive measures in order to remedy the distortion on the internal market actually or potentially caused by a foreign subsidy, the Commission may impose redressive measures. The undertaking concerned may also offer commitments.
Amendment 270 #
Proposal for a regulation
Article 6 – paragraph 6
Article 6 – paragraph 6
(6) Where the undertaking concerned proposes to repay the foreign subsidy including an appropriate interest rate, the Commission shall, in consultation with the Member State(s) concerned could accept such repayment as commitment ifonly where it can ascertain that the repayment is transparent and effectively contributes towards remedying the distortive effect, while taking into account the risk of circumvention.
Amendment 282 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
The Commission mayshall on its own initiative examine information from any source regarding alleged distortive foreign subsidies, including Member States and undertakings or their professional associations, regarding alleged distortive foreign subsidies. The Commission shall provide information to the Member States once an interested party or a Member State has submitted a request justifying the initiation of an investigation and the Commission has completed its analysis thereof, or where the Commission has itself determined that there is a need to initiate an investigation.
Amendment 293 #
Proposal for a regulation
Article 8 – paragraph 2 – point b
Article 8 – paragraph 2 – point b
(b) inform the undertaking concerned, Member States and the European Parliament; and
Amendment 297 #
Proposal for a regulation
Article 8 – paragraph 3
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 and inform the undertaking concernedand Member States concerned, and the European Parliament.
Amendment 303 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
(2) Where the Commission finds that a foreign subsidy distorts the internal market pursuant to Articles 3 to 4 and without prejudice to Article 5, it mayshall impose redressive measures (‘decision with redressive measures’).
Amendment 314 #
Proposal for a regulation
Article 10 – paragraph 1 – point 2
Article 10 – paragraph 1 – point 2
(2) there is a serious risk of substantial and irreparable damage to competition on the internal market.
Amendment 319 #
Proposal for a regulation
Article 10 – paragraph 1 a (new)
Article 10 – paragraph 1 a (new)
Interim measures shall be limited in time.
Amendment 326 #
Proposal for a regulation
Article 11 – paragraph 3 – point c
Article 11 – paragraph 3 – point c
(c) contain a statement that, pursuant to Article 14, a lack of cooperation from the undertaking concerned allowrequires the Commission to take a decision on the basis of the facts that are available.
Amendment 333 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
(1) The Commission mayshall conduct the necessary inspections of undertakings.
Amendment 350 #
Proposal for a regulation
Article 14 – paragraph 3
Article 14 – paragraph 3
(3) Where an undertaking concerned, including a public undertaking which is directly or indirectly controlled by the State, fails to provide the necessary information to determine whether a financial contribution confers a benefit to it, that undertaking maywill be deemed to have received such benefit.
Amendment 353 #
Proposal for a regulation
Article 14 – paragraph 4
Article 14 – paragraph 4
(4) When applying facts available, the result of the procedure mayshould be less favourable to the undertaking concerned than if it had cooperated.
Amendment 366 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
In a concentration, the assessment whether there is a distortion on the internal market within the meaning of Articles 3 or 4 shall be limited to the concentration at stake. Only foreign subsidies granted in the three calendar years prior to the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest or known future subsidies that have been approved by the authorities concerned of the third country, and will become effective within one year following the concentration, shall be considered in the assessment.
Amendment 368 #
Proposal for a regulation
Article 18 – paragraph 3 – point a
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 2500 million; and
Amendment 380 #
Proposal for a regulation
Article 18 – paragraph 4 – point a
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 2500 million; and
Amendment 389 #
Proposal for a regulation
Article 19 – paragraph 4
Article 19 – paragraph 4
(4) If the undertakings concerned fail to meet their obligation to notify, the Commission mayshall review a notifiable concentration in accordance with this Regulation by requesting the notification of that concentration. In that case the Commission shall not be bound by the time limits referred to in Article 23(1) and (4).
Amendment 393 #
Proposal for a regulation
Article 19 – paragraph 5
Article 19 – paragraph 5
(5) The Commission may request the prior notification of any concentration which is not a notifiable concentration within the meaning of Article 18 at any time prior to its implementation where the Commission suspects that the undertakings concerned may have benefitted from foreign subsidies in the three years prior to the concentration or an undertaking will benefit from future subsidies that have been approved and will become effective within one year following the concentration. That concentration shall be deemed to be a notifiable concentration for the purposes of this Regulation.
Amendment 407 #
Proposal for a regulation
Article 24 – paragraph 2 – subparagraph 1 (new)
Article 24 – paragraph 2 – subparagraph 1 (new)
The Commission shall publish notification of the in-depth investigation in the Official Journal of the European Union and invite interested parties, including Member States and third countries, to submit any relevant information in writing within a fixed timeframe.
Amendment 415 #
Proposal for a regulation
Article 26 – paragraph 1
Article 26 – paragraph 1
Foreign subsidies that cause or risk causing a distortion in a public procurement procedure shall be understood as foreign subsidies that enable an undertaking to submit a tender that is unduly advantageous in relation to the works, supplies or services concerned. The assessment of whether there is a distortion on the internal market pursuant to Article 3 and whether a tender is unduly advantageous in relation to the works, supplies or services concerned shall be limited to the public procurement procedure at stake. Only foreign subsidies granted during the three years prior to the notification, or known future subsidies that have been approved and will become effective within one year following the submission of the tender or request to participate in the public procurement procedure, shall be taken into account in the assessment.
Amendment 421 #
Proposal for a regulation
Article 27 – paragraph 2
Article 27 – paragraph 2
(2) For the purpose of Article 28, a notifiable foreign financial contribution in an EU public procurement procedure shall be deemed to arise where the estimated value of that public procurement is equal or greater than EUR 1250 million for public works or infrastructures, and EUR 50 million for services.
Amendment 433 #
Proposal for a regulation
Article 28 – paragraph 1
Article 28 – paragraph 1
(1) When submitting a tender or a request to participate in a public procurement procedure, undertakings shall either notify to the contracting authority or the contracting entity all foreign financial contributions received, including that of parent companies, received or pending in the three years preceding that notification or confirm in a declaration that they did not receive any foreign financial contributions in the last three years. Undertakings which do not submit such information or declaration shall not be awarded the contract.
Amendment 438 #
Proposal for a regulation
Article 28 – paragraph 2
Article 28 – paragraph 2
(2) The obligation to notify foreign financial contributions under this paragraph shall extend to economic operators, groups of economic operators referred to in Article 26(2) of Directive 2014/23/EU, Article 19(2) of Directive 2014/24/EU and Article 37(2) of Directive 2014/25/EU, main subcontractors and main suppliers. A subcontractor or supplier shall be deemed to be main where their participation ensures key elements of the contract performance and in any case where the economic share of their contribution exceeds 3020 % of the estimated value of the contract.
Amendment 443 #
Proposal for a regulation
Article 28 – paragraph 6
Article 28 – paragraph 6
(6) Where the Commission suspects that an undertaking may have benefitted from foreign subsidies in the three years prior to the submission of the tender or request to participate in the public procurement procedure, it may request the notification of the foreign financial contributions receivedor where an undertaking may benefit from foreign subsidies in the year following 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 or foreign financial contributions to be received within one year following the submission of the tender or request to participate in the public procurement procedure 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 463 #
Proposal for a regulation
Article 29 – paragraph 4
Article 29 – paragraph 4
(4) The Commission may adopt a decision closing the in-depth investigation no later than 20150 days after it received the notification. In exceptional circumstances, this time limit may be extended after consultation with the concerned contracting authority or contracting entity.
Amendment 472 #
Proposal for a regulation
Article 31 – paragraph 3
Article 31 – paragraph 3
Amendment 475 #
Proposal for a regulation
Article 31 – paragraph 4
Article 31 – paragraph 4
(4) Where the Commission issues a decision under Article 30(2) regarding the most economically advantageous tender, the contract may be awarded to the undertaking having submitted the next best tender not subject to a decision under Article 30(2).
Amendment 476 #
Proposal for a regulation
Article 31 – paragraph 5
Article 31 – paragraph 5
(5) Where the Commission adopts a decision in accordance with Article 30(1) or (3), the contract may be awarded to any undertaking having submitted the most economically advantageous tender, including, as the case may be, the undertaking(s) having submitted the notification under Article 28.
Amendment 477 #
Proposal for a regulation
Article 31 – paragraph 6
Article 31 – paragraph 6
(6) In all cases, the contracting authority or the contracting entity shall inform the Commission of any decision relating to the outcome of the public procurement procedure, in the month after the procedure is concluded.
Amendment 486 #
Proposal for a regulation
Article 34 – paragraph 2
Article 34 – paragraph 2
(2) The Commission mayshall, where relevant, publish a report on the results of its market investigation into particular sectors, particular types of economic activity or particular subsidy instruments and invite comments from interested parties.
Amendment 491 #
Proposal for a regulation
Article 34 – paragraph 4 a (new)
Article 34 – paragraph 4 a (new)
(4 a) Following a market investigation, the Commission may engage in dialogue with the third country concerned, with the objective to end the distortive effects of a subsidy scheme. This dialogue shall not prevent the Commission from taking further action under the provisions of this Regulation, including the application of interim or redressive measures.
Amendment 494 #
Proposal for a regulation
Article 35 – paragraph 1
Article 35 – paragraph 1
(1) The powers of the Commission under Article 9 shall be subject to a limitation period of ten years, starting on the day on which a foreign subsidy is granted to the undertaking concerned. Any action taken by the Commission under Articles 8, 11, 12, 13 or 134 with respect to a foreign subsidy shall interrupt the limitation period. After each interruption, the limitation period shall start to run afresh.
Amendment 497 #
Proposal for a regulation
Article 36 – paragraph 1
Article 36 – paragraph 1
(1) The Commission shall publish a summary notice of the decisions adopted pursuant to Article 8(2). and to Article 34 (2).
Amendment 498 #
Proposal for a regulation
Article 37 – paragraph 1
Article 37 – paragraph 1
(1) Decisions adopted pursuant to Articles 8, 9, 15, 24(3), 25, 30(1), 32 and 324 (2), shall be addressed to the undertakings or to the association of undertakings concerned. The Commission shall notify the decision to the addressee without delay and shall give the addressee the opportunity to indicate to the Commission which information it considers to be confidential. The Commission shall provide the contracting authority or the contracting entity concerned with a copy of any Commission decision addressed to an undertaking participating in a public procurement procedure.
Amendment 505 #
Proposal for a regulation
Article 40 – paragraph 7
Article 40 – paragraph 7
(7) An investigation pursuant to this Regulation shall not be carried out and measures shall not be imposed or maintained where such investigation or measures would be contrary to the Union’s obligations emanating from any relevant international agreement it has entered into. In particular, no action shall be taken under this Regulation which would amount to a specific action against a subsidy within the meaning of Article 32.1 of the Agreement on Subsidies and Countervailing Measures and granted in a third country which is a member of the World Trade Organisation. This Regulation shall not prevent the Union from exercising its rights or fulfilling its obligations under international agreements.
Amendment 508 #
Proposal for a regulation
Article 42 – paragraph 1 a (new)
Article 42 – paragraph 1 a (new)
(1 a) The first such implementing act shall be adopted no later than one year after the entry into force of this Regulation.
Amendment 509 #
Proposal for a regulation
Article 44
Article 44
Amendment 519 #
Proposal for a regulation
Article 45
Article 45
Amendment 521 #
Proposal for a regulation
Article 46 – paragraph 1
Article 46 – paragraph 1
1. Within fivthree years after the entry into force of this Regulation at the latest, and every two years thereafter, the Commission shall present a report to the European Parliament and the Council on the applicationview and evaluate the functioning and effectiveness of this Regulation, accompanied, where the Commission considers it appropriate, by relevant legislative proposalsnd present a report to the European Parliament and the Council on its application.
Amendment 525 #
Proposal for a regulation
Article 46 – paragraph 1 a (new)
Article 46 – paragraph 1 a (new)
1a.Where the report 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 where 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 where 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 abrogate the present Regulation, if the Commission considers that multilateral rules to address distortive subsidies have rendered this Regulation fully redundant.