European Commission publishes draft regulations on implementation of Foreign Subsidies Regulation

1 March 2023

On 6 February 2023, the European Commission (“Commission”) published draft regulations on the implementation of the Foreign Subsidies Regulation (“FSR”) (“draft Implementation Regulation”).

The draft Implementing Regulation clarifies practical and procedural aspects related to the application of the new European Union (“EU”) rules to address distortions caused by foreign subsidies in the EU market.

Introduction

The FSR entered into force on 12 January 2023 and will start applying on 12 July 2023. From 12 October 2023, companies will have to notify the Commission of M&A transactions and participation in public procurement procedures meeting the relevant notification thresholds.

The FSR allows the Commission to investigate financial contributions granted by non-EU countries to companies operating in the EU and, where necessary, redress their distortive effects. It empowers the Commission to adopt procedural rules in relation to the enforcement of the FSR. For more information about the FSR, please see our article titled “EU adopts new foreign subsidies regulation requiring prior notification of certain M&A transactions and public procurement bids: What this means for companies doing business in the EU”.

Scope of draft Implementation Regulation

The draft Implementation Regulation sets out detailed rules on matters including the following:

• Persons entitled to submit notifications and declarations
• Notification form templates (see below)
• Effective date of notification in concentrations and notifications/declarations in public procurement procedures
• The Commission’s investigative powers, including the conduct of interviews and taking of statements during inspections
• Time limits for the submission of commitments for notified concentrations and for public procurement procedures and the procedure for doing so
• Handling of confidential information
• Access to evidence from an investigation (access to the Commission’s file)
• Calculation of procedural time limits

Notification forms and notification thresholds

The draft Implementation Regulation includes two notification forms specifying the information that must be provided by the notifying parties. The notification forms are set out in the two annexes to the draft Implementation Regulation:

• Annex 1: Notification form for mergers, acquisitions and other concentrations
• Annex 2: Notification form for foreign financial contribution in public procurement procedures

For mergers, acquisitions and other concentrations, a foreign financial contribution needs to be reported if the individual amount of the contribution equals or exceeds EUR 200,000 and the total amount of contributions per third country and per year is equal to or in excess of EUR 4 million.

For public procurement procedures, a foreign financial contribution needs to be reported if its aggregate amount equals or exceeds EUR 4 million per third country in the three years prior to notification.

Parties need to elaborate further on the main elements and characteristics of the financial contributions (e.g. interest rates and duration in the case of loans) and provide supporting evidence of issues such as the form of the contribution (e.g. loan, tax exemption, capital injection), the identity of the granting entity, the purpose and economic rationale for granting the contribution, and whether any conditions are attached to the financial contribution and its use.

Next steps

Feedback on the draft Implementation Regulation may be submitted to the Commission’s Have Your Say Portal until 6 March 2023.

The Commission will take the feedback received into consideration when shaping the final Implementing Regulation, with a view to adopting the rules in the second quarter of 2023, before the start of application of the FSR on 12 July 2023.

Reference materials

The draft Implementation Regulation is available on the Commission website www.ec.europa.eu.