Activities of Reinhard BÜTIKOFER related to 2021/0114(COD)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council on foreign subsidies distorting the internal market
Amendments (73)
Amendment 57 #
Proposal for a regulation
Recital 2
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.
Amendment 68 #
Proposal for a regulation
Recital 7
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, including Member States, Member States’ trade associations and EU-wide social partners. 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 73 #
Proposal for a regulation
Recital 9
Recital 9
(9) There should be a financial contribution or an economically equivalent support measure provided, directly or indirectly, by the public authorities of a third country. The financial contribution or an economically equivalent support measure provided may be granted through public or private entities. Whether a public entity provides a financial contribution or an economically equivalent support measure provided 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 or economically equivalent support measures provided may also be granted through a private entity if its actions can be plausibly attributed to the third country.
Amendment 78 #
Proposal for a regulation
Recital 10
Recital 10
(10) Such a financial contribution or economically equivalent support measure should confer a benefit to an undertaking engaging in an economic activity in the internal market. A financial contribution or an economically equivalent support measure that benefits an entity engaging in non- economic activities does not constitute a foreign subsidy. The existence of a benefit should be determined on the basis of comparative benchmarks, such as the investment practice of private investors, rates for financing obtainable on the market, a comparable tax treatment, or the adequate remuneration for a given good or service.. If no directly comparable benchmarks are available, existing benchmarks could be adjusted or alternative benchmarks could be established based on generally accepted assessment methods.
Amendment 84 #
Proposal for a regulation
Recital 12
Recital 12
(12) Once the existence of a foreign subsidy is established, the Commission should assess whether the foreign subsidy distorts the internal market. Unlike State aid granted by a Member State, foreign subsidies are not generally prohibitedsubject to equivalent forms of State Aid control. Subsidies in the form of export financing may be a cause of particular concern because of their distortive effects. This is not the case if such financing is provided in line with the OECD Arrangement on officially supported export credits. The Commission should assess on a case-by- case basis whether a foreign subsidy distorts the internal market.
Amendment 88 #
Proposal for a regulation
Recital 14
Recital 14
(14) When applying these indicators, the Commission could take into account different elements such as the size of the subsidy in absolute terms or in relation to the size of the market or to the value of the investment. For instance, a concentration, in the context of which a foreign subsidy covers a substantial part of the purchase price of the target, is likely to be distortive. Similarly, foreign subsidies covering a substantial part of the estimated value of a contract to be awarded in a public procurement procedure are likely to cause distortions. If a foreign subsidy is granted for operating costs, it seems more likely to cause distortions than if it is granted for investment costs. Foreign subsidies to small and medium-sized undertakings may be considered less likely to cause distortions than foreign subsidies to large undertakings. Furthermore, the characteristics of the market, and in particular the competitive conditions on the market, such as barriers to entry, should be taken into account. Foreign subsidies leading to overcapacity by sustaining uneconomic assets or by encouraging investment in capacity expansions that would otherwise not have been built are likely to cause distortions. A foreign subsidy to a beneficiary that shows a low degree of activity in the internal market, measured for instance in terms of turnover achieved in the Union, is less likely to cause distortions than a foreign subsidy to a beneficiary that has a more significant level of activity in the internal market. Finally, foreign subsidies not exceeding EUR 5 millionthe de minimis rule applied for State Aid control in the single market should be deemed, as a general rule, unlikely to distort the internal market within the meaning of this Regulation.
Amendment 92 #
Proposal for a regulation
Recital 16
Recital 16
(16) The Commission should take into account the positive effects of the foreign subsidy on the development of the relevant subsidised economic activity in particular as regards its contribution to the Union’s objectives and the positive social and environmental externalities of such subsidised activities. 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 also take into account the positive effects of subsidies granted to remedy a serious national or global disturbance of the economy.
Amendment 103 #
Proposal for a regulation
Recital 21
Recital 21
(21) The Commission should have the power, on its own initiative, to examine any information on foreign subsidies. The Commission should be able to act upon information received from any relevant source, including Member States, Member States’ trade associations and EU-wide social partners. To this end, it is necessary to establish a procedure consisting of two steps, namely a preliminary review and an in-depth investigation.
Amendment 119 #
Proposal for a regulation
Recital 28
Recital 28
(28) Given the potentially significant impact of concentrations on the internal market, the Commission should have the power, upon notification, to examine information on foreign financial contributionsubsidies 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 123 #
Proposal for a regulation
Recital 31
Recital 31
(31) Below the notification thresholds, the Commission cshould 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.
Amendment 133 #
Proposal for a regulation
Recital 33
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 contributionsubsidies 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 administrative burden and not hindering the participation of SMEs in public procurement. That obligation of prior notification above a threshold should also apply to groups of economic operators referred to in Article 26(2) of Directive 2014/23/EU of the European Parliament and of the Council40 , Article 19(2) of Directive 2014/24/EU of the European Parliament and of the Council41 and Article 37(2) of Directive 2014/25/EU of the European Parliament and of the Council42 . It should also apply to the main subcontractors and the main suppliers of undertaking. _________________ 40 Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ L 94, 28.3.2014, p. 1). 41 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65). 42 Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p. 243).
Amendment 143 #
Proposal for a regulation
Recital 37
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 Commission on its own initiative. Financial contributions of which the Commission was informed through the notification procedure may however also be relevant outside the concentration or procurement procedure. In order to gather information on foreign subsidies, the Commission should have the possibility to launch investigations regarding specific sectors of the economy, particular types of economic activity or the use of particular foreign subsidy instruments. The Commission should be able to use the information obtained from such market investigations to review certain transactions in the framework of the procedures under this Regulation.
Amendment 148 #
Proposal for a regulation
Recital 39
Recital 39
(39) In the interest of transparency and legal certainty, it is appropriate to publish either in full or in a summary form all decisions adopted by the Commission, as well as in-depth investigations and balancing assessments.
Amendment 149 #
Proposal for a regulation
Recital 43
Recital 43
(43) The implementation of this Regulation by the Union should comply with Union law, be consistent withe WTO Agreements 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 157 #
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 Commission in respect of specifying economically equivalent support measure to a financial contribution, establishing criteria for identifying actions that can be plausibly attributed to third countries, specifying the methodology underlying the balancing assessment, adopting a methodology for determining that a serious risk of substantial and irreparable damage to competition arises on the internal market, amending the notification thresholds for concentrations and for public procurement procedures, exempting certain categories of undertakings from the notification obligations under this Regulation, as well as amending the time limits for the preliminary review and the in-depth investigations of notified concentrations or notified financial contributions economically equivalent support measures in the context of a public procurement procedure. In relation to financial contributions economically equivalent support measure in the context of a public procurement procedure, the power to adopt such acts should be exercised in a way that takes into account the interests of SMEs. It is of particular importance that the Commission carries out appropriate consultations during the preparations of those acts, including at expert level, and that those consultations 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).
Amendment 169 #
Proposal for a regulation
Article 2 – paragraph 1
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 measure which confers a plausible 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 174 #
Proposal for a regulation
Article 2 – paragraph 2 – point a – point i
Article 2 – paragraph 2 – point a – point i
(i) the transfer of funds or liabilities, such as capital injections, grants, loans, loan guarantees, fiscal incentives, setting off of operating losses, compensation for financial burdens imposed by public authorities, debt forgiveness, debt to equity swaps or rescheduling, as well as price transfers from a parent company under the control of a foreign entity as referred to in points (i) and (ii) of paragraph 2(b);
Amendment 177 #
Proposal for a regulation
Article 2 – paragraph 2 – point a – point iii
Article 2 – paragraph 2 – point a – point iii
(iii) the provision of goods or services or the purchase of goods and services; with the exception of the purchase of goods and services based on public procurement contracts awarded after a competitive tendering procedure abiding by the principles of WTO Agreement on Government Procurement; or
Amendment 179 #
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) the full or partial exemption, remission, or deferral of charges or taxes paid or payable, including environmental or social welfare charges or taxes;
Amendment 182 #
(a a) A support measure that is economically equivalent to a financial contribution shall 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 2(a) and it shall refer to a policy action or non-action in a third country including: (i) inadequately remunerated special or exclusive rights; (ii) conditions in a domestic captive market in the third country that can be attributed to the legal and economic environment prevailing in that country and that result in the de jure or de facto exclusion of competitors originating in the EU; (iii) any selective exemption from or failure to ensure compliance with applicable rules, such as obligations relating to environmental, social and labour law and standards;
Amendment 184 #
Proposal for a regulation
Article 2 – paragraph 2 – point b – introductory part
Article 2 – paragraph 2 – point b – introductory part
(b) the financial contribution or an economically equivalent support measure provided by the third country shall include the financial contribution or an economically equivalent support measure provided by:
Amendment 187 #
Proposal for a regulation
Article 2 – paragraph 2 – point b – point ii
Article 2 – paragraph 2 – point b – point ii
(ii) foreign public entities, whose actions can be plausibly 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 and in particular whether the subsidy is provided by a non-market economy; or
Amendment 189 #
Proposal for a regulation
Article 2 – paragraph 2 – point b – point iii
Article 2 – paragraph 2 – point b – point iii
(iii) any private entity whose actions can be plausibly attributed to the third country, taking into account all relevant circumstances.
Amendment 193 #
Proposal for a regulation
Article 2 – paragraph 2 a (new)
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 financial contribution, the definition of economically equivalent support measure, as well as for establishing criteria for identifying actions that can be plausibly attributed to third countries as referred to in paragraphs 1 and 2 of this Article.
Amendment 194 #
Proposal for a regulation
Article 2 – paragraph 2 b (new)
Article 2 – paragraph 2 b (new)
(2 b) For the purpose of this Regulation, where the Commission has well-founded evidence of the existence of significant distortions in a third country or a sector in a third country, public undertakings from this country, which are directly or indirectly state owned or controlled, shall be presumed having received distortive foreign subsidies in the absence of proof of the contrary.
Amendment 198 #
Proposal for a regulation
Article 3 – paragraph 1 – introductory part
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 mayshall at least include the following:
Amendment 209 #
Proposal for a regulation
Article 3 – paragraph 2
Article 3 – paragraph 2
(2) A foreign subsidy is unlikely to distort the internal market if its total amount is below EUR 5 million over any consecutive period of three fiscalthe de minimis threshold, laid down in Commission Regulation No 1407/2013 over a years.
Amendment 215 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
(2 a) The Commission is empowered to adopt a delegated act for the purpose of supplementing the indicators referred to in paragraph 1.
Amendment 218 #
Proposal for a regulation
Article 4 – paragraph 1 – point 2
Article 4 – paragraph 1 – point 2
(2) a foreign subsidy in the form of an unlimited guarantee for debts or liabilities of the undertaking, that is to say without any limitation as to the amount or the duration of such guarantee or a guarantee provided below market costs;
Amendment 220 #
Proposal for a regulation
Article 4 – paragraph 1 – point 4 a (new)
Article 4 – paragraph 1 – point 4 a (new)
(4 a) all export financing subsidies granted by countries which are not signatories to the OECD Arrangement on officially supported export credits where they cause a distortion in the internal market; all foreign subsidies to beneficiaries active in sectors: - characterized by structural excess capacity; - featuring high-tech and/or dual-use products to a significant extent;or - designated as strategic by the government providing the subsidies.
Amendment 232 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
(1) The Commission shall, where warranted, balance, both short and long- term, 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, including positive environmental and social externalities providing a contribution to EU policy objectives.
Amendment 241 #
Proposal for a regulation
Article 5 – paragraph 2
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, to impose redressive measures or to accept commitments, and the nature and level of those redressive measures or commitments.
Amendment 244 #
Proposal for a regulation
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
(2 a) The balancing 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 and shall carry out, where warranted, a consultation with Member States, Member States’ trade associations and EU-wide social partners.
Amendment 249 #
Proposal for a regulation
Article 5 – paragraph 2 b (new)
Article 5 – paragraph 2 b (new)
(2 b) The Commission is empowered to adopt 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 251 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
(1) To remedy the distortion on the internal market actually or potentially caused by a foreign subsidy, the Commission mayshall impose redressive measures unless the balancing assessment referred to in Article 5 determines that positive effects outweigh negative ones. The undertaking concerned may also offer commitments.
Amendment 258 #
Proposal for a regulation
Article 6 – paragraph 3 – introductory part
Article 6 – paragraph 3 – introductory part
(3) Commitments or redressive measures may, inter alia, consist of the following:
Amendment 265 #
Proposal for a regulation
Article 6 – paragraph 4
Article 6 – paragraph 4
(4) The Commission mayshall impose reporting and transparency requirements.
Amendment 269 #
Proposal for a regulation
Article 6 – paragraph 5
Article 6 – paragraph 5
(5) If an undertaking offers commitments which fully and effectively remedy the distortion on the internal market, the Commission mayshall accept them and make them binding on the undertaking in a decision with commitments according to Article 9(3).
Amendment 283 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
The Commission may on its own initiative examine substantiated information from any source regarding alleged distortive foreign subsidies. The Commission shall examine substantiated information submitted by Member States, Member States’ trade associations and EU-wide social partners.
Amendment 287 #
Proposal for a regulation
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
(1) The Commission shall seek all the information it considers necessary to assess, on a preliminary basis, whether the financial contribution or the economically equivalent support measure under examination constitutes a foreign subsidy and whether it distorts the internal market. To that end, the Commission may in particular:
Amendment 300 #
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 concerned and publish its preliminary assessment.
Amendment 304 #
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 5, it mayshall impose redressive measures (‘decision with redressive measures’).
Amendment 310 #
Proposal for a regulation
Article 10 – paragraph 1 – point 1
Article 10 – paragraph 1 – point 1
(1) there are indications that a financial contribution or economically equivalent support measure constitutes a foreign subsidy and distorts the internal market; and
Amendment 317 #
Proposal for a regulation
Article 10 – paragraph 1 – point 2 a (new)
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 318 #
Proposal for a regulation
Article 10 – paragraph 1 – point 2 b (new)
Article 10 – paragraph 1 – point 2 b (new)
(2 b) The Commission is empowered to adopt a delegated act for the purpose of supplementing paragraphs 1 and 2 with a methodology for determining that a serious risk of substantial and irreparable damage to competition arises on the internal market.
Amendment 335 #
Proposal for a regulation
Article 12 – paragraph 1
Article 12 – paragraph 1
(1) The Commission mayshall conduct the necessary inspections of undertakings.
Amendment 342 #
Proposal for a regulation
Article 12 – paragraph 7
Article 12 – paragraph 7
(7) Upon request ofnotification to the Commission, a Member State shall in its own territory carry out any inspection or other fact- finding measure under its national law in order to establish whether there is a foreign subsidy distorting the internal market.
Amendment 348 #
Proposal for a regulation
Article 14 – paragraph 1 – introductory part
Article 14 – paragraph 1 – introductory part
(1) The Commission mayshall take a decision pursuant to Article 8 or may take a decision pursuant to Article 9 on the basis of the facts available, if an undertaking concerned or a third country:
Amendment 351 #
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 or the economically equivalent support measure confers a benefit to it, that undertaking may be deemed to have received such benefit.
Amendment 355 #
Proposal for a regulation
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
(1) The Commission mayshall impose by decision fines and periodic penalty payments where an undertaking concerned or an association of undertakings, intentionally or negligently:
Amendment 360 #
Proposal for a regulation
Article 15 – paragraph 5 – introductory part
Article 15 – paragraph 5 – introductory part
(5) Where an undertaking concerned does not comply with a decision with commitments pursuant to Article 9(3), a decision ordering interim measures pursuant to Article 10 or a decision imposing redressive measures pursuant to Article 9(2), the Commission mayshall impose by decision:
Amendment 363 #
Proposal for a regulation
Article 16 – paragraph 1 – introductory part
Article 16 – paragraph 1 – introductory part
The Commission mayshall revoke a decision taken pursuant to Article 9(2), (3) or (4) and adopt a new decision in any of the following cases:where the undertaking concerned acts contrary to its commitments or the redressive measures imposed. The Commission may revoke a decision taken pursuant to Article 9(2), (3) or (4) and adopt a new decision where the decision was based on incomplete, incorrect or misleading information.
Amendment 364 #
Proposal for a regulation
Article 16 – paragraph 1 – point 1
Article 16 – paragraph 1 – point 1
Amendment 365 #
Proposal for a regulation
Article 16 – paragraph 1 – point 2
Article 16 – paragraph 1 – point 2
Amendment 369 #
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 375 #
Proposal for a regulation
Article 18 – paragraph 3 – point b
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 250 million.
Amendment 382 #
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 386 #
Proposal for a regulation
Article 18 – paragraph 4 – point b
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 250 million.
Amendment 390 #
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 397 #
Proposal for a regulation
Article 22 – title
Article 22 – title
Aggregation of financial contributionoreign subsidies
Amendment 400 #
Proposal for a regulation
Article 22 – paragraph 1
Article 22 – paragraph 1
The aggregate financial contributionoreign subsidy to an undertaking concerned shall be calculated by adding together the respective financial contributionsoreign subsidy received from third countries by all undertakings referred to in Article 21(4), points (a) to (e).
Amendment 423 #
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. The notification procedure should apply to critical infrastructure without regard to the threshold.
Amendment 427 #
Proposal for a regulation
Article 27 – paragraph 2 a (new)
Article 27 – paragraph 2 a (new)
(2 a) For the purposes of Article 28, critical infrastructure means an asset, system or part thereof located in Member States which is essential for the maintenance of vital societal functions, health, safety, security, economic or social well-being of people, and the disruption or destruction of which would have a significant impact in a Member State as a result of the failure to maintain those functions.
Amendment 459 #
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 2100 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 479 #
Proposal for a regulation
Article 31 – paragraph 7
Article 31 – paragraph 7
(7) The principles governing public procurement, including proportionality, non-discrimination, equal treatment, and transparency and compliance with obligations relating to applicable environmental, social and labour law and standards, shall be observed as regards all undertakings involved in the public procurement procedure. The investigation of foreign subsidies pursuant to this Regulation shall not result in the contracting authority or the contracting entity treating the undertaking concerned in a way that is contrary to those principles.
Amendment 482 #
Proposal for a regulation
Article 32 – title
Article 32 – title
Fines and periodic penalty payments applicable to financial contributionoreign subsidies in the context of public procurement procedures
Amendment 485 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
(1) Where the information available substantiates a reasonable suspicion that foreign subsidies in a particular sector, for a particular type of economic activity or based on a particular subsidy instrument may distort the internal market, the Commission mayshall conduct a market investigation into the particular sector, the particular type of economic activity or into the use of the subsidy instrument concerned. In the course of that market investigation, the Commission mayshall request the undertakings or associations of undertakings concerned to supply the necessary information and may carry out the necessary inspections. The Commission may also request the Member State or third country concerned to supply information to Member States’ trade associations and EU-wide social partners.
Amendment 487 #
Proposal for a regulation
Article 34 – paragraph 2
Article 34 – paragraph 2
(2) The Commission mayshall publish a report on the results of its market investigation into particular sectors, particular types of economic activity or particular subsidy instruments and invite comments from interested parties.
Amendment 504 #
Proposal for a regulation
Article 40 – paragraph 7
Article 40 – paragraph 7
(7) An investigation pursuant to this Regulation shall not be carried out and measures shall not be imposed or maintained where such investigation or measures would be contrary to the Union’s obligations emanating from any relevant international agreement it has entered into. In particular, no action shall be taken under this Regulation which would amount to a specific action against a subsidy within the meaning of Article 32.1 of the Agreement on Subsidies and Countervailing Measures, except where the Commission has well- founded indications that the country granting the subsidy is in substantial non- compliance with notification obligations under the Agreement or under other international agreements, at least with regard to the sector concerned. Regardless of the sector involved, actions may always be taken under this Regulation in relation to foreign subsidies which cause distortions on the internal market in public procurement procedures or in relation to concentrations. This Regulation shall not prevent the Union from exercising its rights or fulfilling its obligations under international agreements.
Amendment 512 #
Proposal for a regulation
Article 44 – paragraph 1 – point -a (new)
Article 44 – paragraph 1 – point -a (new)
(-a) specifying the definition of financial contribution, the definition of economically equivalent support measure, as well as for establishing criteria for identifying actions that can be plausibly attributed to third countries as set out in Article 2;
Amendment 513 #
Proposal for a regulation
Article 44 – paragraph 1 – point -a a (new)
Article 44 – paragraph 1 – point -a a (new)
(-a a) supplementing the indicators set out for determining distortive subsidies in the single market as referred to in Article 3;
Amendment 514 #
Proposal for a regulation
Article 44 – paragraph 1 – point -a b (new)
Article 44 – paragraph 1 – point -a b (new)
(-a b) specifying the methodology underlying the balancing assessment and in particular for the determination of positive effects as well as criteria for outweighing effects referred to in Article 5;
Amendment 531 #
Proposal for a regulation
Article 47 – paragraph 2
Article 47 – paragraph 2
(2) This Regulation shall apply to foreign financial contributionsubsidies granted in the three years prior to the date of application of this Regulation where such foreign financial contributionsubsidies were granted to an undertaking notifying a concentration or notifying financial contributions in the context of a public procurement procedure pursuant to this Regulation.