On 30 June 2022, the Council of the EU (the “Council”) and the European Parliament (the “Parliament”) reached a much awaited agreement on the proposal of the European Commission (the “Commission”) for the Regulation on foreign subsidies distorting the internal market (the “FSR”) (see our alert on the proposal). This political agreement swiftly concludes the trilogue discussions initiated in the beginning of May this year, after the Council (see our blog post) and the Parliament (see our blog post) each adopted their own positions. The agreement has been approved by the Permanent Representatives Committee (“COREPER”) of the Council on 13 July and the Committee on International Trade of the European Parliament on 14 July.

The FSR grants substantial new powers to the Commission and “will help close the regulatory gap whereby subsidies granted by non-EU governments currently go largely unchecked”, according to remarks from Executive Vice-President of the Commission, Margrethe Vestager. It will be deeply transformative for M&A and public procurement in the EU.

The agreement on the FSR did not lead to any major changes in the proposal made by the Commission. The most notable points of discussion between the Parliament and Council and the outcome of this agreement are:

  • The thresholds above which companies are obliged to inform the Commission about their foreign subsidies remain unchanged compared to the Commission’s proposal;
  • The time period in which the Commission has to investigate foreign subsidies in large public procurement has been reduced. In the same way, the retroactive application of the FSR has been limited to foreign subsidies granted in the five years prior to the application of the regulation;
  • The Commission will issue guidelines on the existence of a distortion, the balancing test and its power to request notification of non-notifiable transactions, at the latest three years after the entry into force of the FSR; and
  • A commitment to a multilateral approach to foreign subsidies above the FSR and the possibility for the Commission to engage in a dialogue with third countries has been included.

No threshold change

Despite long discussions on the notification thresholds, the Council and the Parliament chose to endorse the thresholds set forth in the Commission’s proposal, while adding further thresholds. Consequently, a notification will be required for concentrations where (i) the acquired company, one of the merging parties, or the joint venture generates an EU turnover of at least EUR 500 million and (ii) the parties involved were granted foreign financial contributions in the three past years of more than EUR 50 million. For public procurement procedures, notification is required where (i) the procurement has a total value of at least EUR 250 million and (ii) the economic operator (including its subcontractors, if any) was granted foreign financial contribution in the three preceding years of at least EUR 4 million per third country. In addition, where a procurement is divided into lots, foreign subsidies will only be notifiable if the aggregate value of the lots to which the tenderer applies amounts to at least EUR 125 million.

Reduced time limits

The Council and the Parliament chose to reduce the time limits in which the Commission has to investigate a foreign subsidy in a notified public procurement, compared to the Commission’s proposal. Consequently, the time limit to complete a preliminary review of a foreign subsidy in a notified public procurement is reduced from 60 to 20 working days from the notification or, in multi-stage procurements, from the (final) tender. The time limit to close an in-depth investigation has been lowered from 200 to 110 working days from the notification.

In addition, the initial 10-year time limit to review foreign subsidies granted before the application of the FSR has also been reduced to five years in accordance with the Council’s position.

The time limits for notifiable concentrations remain the same as the Commission’s proposal. Consequently, a notifiable concentration may not be implemented until 25 working days have elapsed from a complete notification or, when the Commission initiates an in-depth investigation within that period, 90 working days after opening the in-depth investigation.

Additional clarifications and guidelines

The Commission will issue supplementary guidelines three years after the entry into force of the FSR. Executive Vice-President Vestager explained the reason behind the three-year time period: “Guidelines are binding on the commission. We do know, to a very large degree, how this tool will work, but it will allow us to get some experience so that we’ll know what will be the exact scope”. These guidelines will cover (i) the existence of a distortion, (ii) the balancing test performed to assess the market-distorting effects of foreign subsidies against their potential wider benefits and (iii) the Commission’s power to request notification of non-notifiable transactions. The Commission committed to provide initial clarification on these concepts within 12 months after the date of application of the FSR.

 The FSR now specifies that the following may be taken into consideration for the balancing test: the positive effects on the internal market as well as the positive effects in relation to relevant policy objectives, in particular those of the Union. Positive effects may relate, for instance, to a high level of environmental protection and social standards, and the promotion of research and development.

Multilateral rules and third-country dialogue

The institutions reaffirmed being committed “to an open and rules-based multilateral trading system with a modernised WTO at its core and to further enhancing the effectiveness of the multilateral framework on subsidies”. This may lead to the repeal of the FSR if made thereby redundant.

The agreement further allows the Commission to engage in a dialogue with non-EU countries that are found to regularly grant distortive subsidies. The objective is to explore options for stopping or modifying such subsidies. According to the Parliament’s rapporteur on the FSR, this provision will help the “Commission to fight the consequences of distortive subsidies in the EU, but also seek to address its root causes in third countries.”

Next steps

The FSR has had a very smooth legislative process so far and received approval at a remarkably high speed. The FSR must now be formally adopted by the Council and the Parliament in plenary. It will then enter into force on the 20th day following its publication in the Official Journal of the European Union. The FSR will apply six months after entering into force and the notification obligations, three months later. This transitory period will allow the Commission to adopt its implementing rules on procedural details and to be staffed for its new role.

Tags: European Union, foreign direct investment, foreign subsidies
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Photo of Johan Ysewyn Johan Ysewyn

Johan is widely respected as a highly skilled European competition lawyer, advising on complex competition issues, including on merger control, anti-cartel enforcement, monopolisation cases and other conduct investigations. He acts as co-head of the firm’s Global Competition group and as managing partner of…

Johan is widely respected as a highly skilled European competition lawyer, advising on complex competition issues, including on merger control, anti-cartel enforcement, monopolisation cases and other conduct investigations. He acts as co-head of the firm’s Global Competition group and as managing partner of the Brussels office.

Clients turn to Johan when they need cutting-edge competition and regulatory advice. He has been advising some of the world’s leading companies for over 30 years on their most complex competition issues. Johan is “an exceptional lawyer who is solution-oriented, has a remarkable ability to rapidly understand our business and has excellent reactivity” (Chambers Global).  Johan “attracts considerable praise for his reliable practice, as well as his great energy and insight into cartel proceedings” (Who’s Who Legal). “Johan Ysewyn has a unique understanding of the EC and a very helpful network of connections across Brussels. (…) One of the best European competition lawyers” (Legal 500).

Johan represents clients from around the world in dealings with competition authorities as well as in court litigation. He has in-depth knowledge of regulatory procedures and best practices as well as longstanding relationships with key regulators, in particular at the European Commission. He has also an active advisory practice covering a range of areas of interest to corporates, including the interplay between ESG goals and competition law, the impact of competition law enforcement on digital markets and broad strategic compliance issues.

Johan’s experience spans many industry sectors, with recent experience in telecoms and information technology, media, healthcare, consumer goods, retail, energy and transport. He has advised on several of the most major merger investigations in recent years. In addition, he has represented clients in many conduct investigations.

Johan’s practice also has a strong focus on global and European cartel investigations. He has acted for the immunity applicants in the bitumen and marine hose cartels, and acted for defendants in alleged cartels in financial services, consumer goods, pharmaceuticals, chemicals, consumer electronics and price benchmarking in the oil sector. He has acted for the European Payments Council in the first European Commission investigation into standardisation agreements in the e-payments sector. Johan has written and lectured extensively on international cartel and leniency-related issues. He co-authors the loose-leaf European Cartel Digest and lectures on cartel law and economics at the Brussels School of Competition.

Johan is also one of the leading experts on EU State aid issues, working both for beneficiaries and governments. He has advised a number of leading banks and governments, as well as represented major European airlines. From the cases that can be publicly disclosed, he has been involved in the Fortis, KBC, Dexia, Arco, Citadele, airBaltic and Riga Airport State aid cases.

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Photo of Carole Maczkovics Carole Maczkovics

Carole Maczkovics is a market leader in State aid law, with a robust background in the economic regulation of network industries (energy and transport) and in public contracting (EU subsidies, public procurement, concessions).

Carole has a proven track record of advising public and…

Carole Maczkovics is a market leader in State aid law, with a robust background in the economic regulation of network industries (energy and transport) and in public contracting (EU subsidies, public procurement, concessions).

Carole has a proven track record of advising public and private entities in administrative and judicial proceedings on complex State aid and regulatory matters before the European Commission as well as before the Belgian and European courts. She also advises clients on the application of the EU Foreign Subsidy Regulation (FSR) and UK subsidy control regime.

Carole has published many articles on State aid law and on the FSR, and contributes to conferences and seminars on a regular basis. She is a visiting lecturer at King’s College London on the FSR and at the Brussels School of Competition on the application of regulation and competition law (including State aid) in the railway sector. Carole gives trainings on State aid law at EFE, in Paris. She also acts as Academic Director of the European State aid Law Institute (EStALI).

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