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Christian Ahlborn

For more than 20 years Christian Ahlborn has been advising multinational corporates, banks and other institutions on all aspects of global competition law, combining an in-depth understanding of the subject with a pragmatic approach.

Christian is qualified in England & Wales and in Germany and is widely recognized as a market-leading competition lawyer. He is also a trained economist. Christian belongs to a small group of antitrust practitioners who can bring both a legal and economic perspective to a case.

Christian advises major corporates, banks and institutions on all areas of global competition law. He has a broad range of experience in EU competition law, particularly in relation to complex M&A, behavioral antitrust work, control of dominance issues and State aid control. He is well-known for extensive work on high-profile matters.

Christian’s experience spans many industry sectors, with particular experience in financial services, IT, fast-moving consumer goods and mining.

During his career Christian has been seconded to the European Commission’s Directorate-General for Competition and to the Bundeskartellamt. He is also well known on the Brussels market.

On 10 July 2023, the European Commission (the “Commission”) adopted the Implementing Regulation (“IR”) for the European Union (“EU”) Foreign Subsidies Regulation (“FSR”). The FSR, which starts to apply today, 12 July 2023, creates a new instrument designed to prevent foreign subsidies from distorting the EU internal market (see our blog). The objective is to level the playing field within EU markets between companies subject to scrutiny under the EU State aid rules and companies receiving subsidies from non-EU Member States.

To attain this objective, the FSR empowers the Commission to assess foreign subsidies either on its own motion or after the notification of concentrations or public procurement tenders in the EU where certain thresholds are exceeded. Foreign subsidies are financial contributions (i.e. any value transfer) granted by non-EU countries, or entities whose action can be attributed to a non-EU country (i.e. foreign financial contributions or “FFC”) that confer a benefit that is not available on the market, specifically to one or to several companies or industries. Where foreign subsidies are problematic, this assessment may lead to remedies and even to the prohibition of the concentration or of the award of a public contract. Although the FSR starts to apply on 12 July 2023, allowing the Commission to investigate foreign subsidies on its own motion, the notification obligations only kick in on 12 October 2023. That means that notification may be requested for transactions signed after 12 July but not closed by 12 October and for public procurement procedures initiated after 12 July.

The purpose of the IR is to set out the rules applicable to proceedings conducted by the Commission under the FSR, including the submission of notifications.

Key things you need to know about the IR and the notification obligations:

  • The IR enacts the forms that notifying parties will have to complete and submit to the Commission in the context of concentrations and public procurement tenders.
  • The Commission must review foreign subsidies within statutory time limits that start to run as soon as the notification is complete and that may be suspended to obtain further information.
  • Detailed information must be submitted for FFCs that are considered to fall into the most distortive categories of foreign subsidies, whereas aggregate information must be provided for most other FFCs.
  • Information must be provided for FFCs provided to all group entities of the party or parties involved.
  • Companies that are likely to be involved in large concentrations or public procurements would be well advised to prepare sufficiently well in advance to avoid delays in their clearance timeline.

Continue Reading The EU Foreign Subsidies Regulation starts to apply – what you need to know about the notification obligations

The Digital Markets Act (“DMA”) will apply from 2 May 2023. In anticipation of this, the European Commission (“Commission”) has sought feedback via a public consultation on the draft DMA Implementing Regulation (“IR”) between early December and 9 January 2023.

The draft IR addresses a range of procedural aspects concerning the DMA, including gatekeeper designation and core platform service notifications, opening of proceedings, the right to be heard, and access to the file. By contrast, the draft IR so far is silent on the Commission’s investigative powers during the gatekeeper designation process and the process of further specifying the obligations set out in Article 6 DMA (both of which gatekeepers will undoubtedly be eager to learn more about).

The Commission is aiming to publish the final IR before Spring, and it will apply from the same date as the DMA. Whilst the draft IR may still be subject to changes before the final version is adopted, it already provides valuable insights into the Commission’s thinking.  How stakeholder feedback might affect these issues in the final IR remains to be seen.

Two themes in the draft IR – each further outlined below – are particularly noteworthy:

  • First, it touches upon the potential delineations of core platform service under the DMA, an issue which can have important ramifications for future enforcement: delineating one core platform service from other services in the context of digital ecosystems which are often designed to be seamless could prove rather complex.
  • Second, the draft IR displays a certain tension between achieving a “rapid and effective investigatory and enforcement process” (Recital 3 IR) while also ensuring that rights of the defence of the parties to the proceedings are effectively protected. The Commission’s emphasis on speed in DMA enforcement may require some notable departures from the traditional procedural framework for antitrust.

Continue Reading Countdown to Compliance: the DMA Implementing Regulation

European Union (“EU”) Foreign Subsidies Regulation (“FSR”), a new state aid instrument adopted at the end of 2022, will have a significant impact on transactions in the EU. The FSR impacts any company that is present in or wants the enter the EU, and has received financial support in any form from non-EU governments. 

The FSR is game-changing — it imposes notification obligations on companies on subsidies received from non-EU countries and, when those subsidies are considered to distort the internal market in the EU, the European Commission (“EC”) can impose remedies.

Companies will now have notification obligations if they have received foreign financial contributions above a certain amount and are:

(1)    acquiring a company that has a turnover of at least EUR 500 million in the EU, or

(2)    participating in a public tender with a value of EUR 250 million.

These notification obligations will start to apply on 12 October 2023.Continue Reading EU Foreign Subsidies Regulation – Key Takeaways

Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market (FSR) entered into force on 12 January 2023 and will start to apply as of 12 July 2023.

The FSR creates a brand new instrument to fill a regulatory gap, by preventing foreign subsidies from distorting the European Union (EU) internal market. Whereas companies receiving public support in the EU are subject to strict State aid rules, companies obtaining public support outside the EU are generally not. This was perceived as putting companies in the EU at a disadvantage compared to companies that obtained subsidies outside the EU, but that also engaged in economic activity in the Union.

The FSR’s scope extends far beyond the obvious State support, to cover common types of benefits that are granted all over the world, including in countries driven by a market economy. Its obligations will inevitably place an additional administrative burden on companies engaging in an economic activity in the EU. Acceptance of a foreign subsidy distorting the EU internal market may have far-reaching consequences for the company. The FSR places additional compliance obligations on companies, and for many will entail a thorough assessment to identify and justify foreign subsidies received. For companies considering transactions in the EU, the FSR effectively creates a third layer of deal conditionality, besides merger control and Foreign Direct Investment laws. This is adding a further unique set of thresholds, timings and factual considerations, to be included in companies’ strategies to invest in the EU. This will require expertise in EU antitrust and State aid law, and a good understanding of the details of the FSR.

Key things you need to know:Continue Reading The EU Foreign Subsidies Regulation enters into force