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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.

The EU Foreign Subsidies Regulation (“FSR”), which creates a new clearance mechanism for non-EU subsidies granted to companies engaging in certain activities in the EU, took effect on 12 July 2023, with notification obligations starting on 12 October 2023. On 22 February 2024 the European Commission’s (“Commission”) Directorate General for Competition (“DG COMP”) published a Policy Brief discussing the 100 days since the start of the notification obligation for concentrations.

This post provides an update to our previous blog post on FSR enforcement expectations for 2024, taking account of the Policy Brief, the reported enforcement activity of the Commission’s Directorate General for Internal Market, Industry, Entrepreneurship and SMEs (“DG GROW”) for public procurement procedures, and the launch of the first in-depth investigation by DG GROW into a public procurement procedure in Bulgaria.

Key Takeaways

  • The Commission does not publish the decisions it adopts after a preliminary review and will not issue guidelines on key concepts underpinning the FSR before 2026. In the meantime it has sought to provide some additional guidance to companies through informal documents such as Q&A pages, news articles, and Policy Briefs. However, it has yet to provide guidance on how it assesses the distortive potential of foreign subsidies. Companies will therefore have to anticipate how such foreign subsidies will be assessed under the FSR, with a view to developing their own narratives to persuade the Commission that any foreign subsidies they may have received are unproblematic.
  • As of 20 January 2024, DG COMP had received 53 (pre-)notifications, higher than the 30 notifications it expected annually in its 2021 FSR proposal. To review these files and launch investigations on its own, DG COMP has been restructured with the creation of a new directorate (Directorate K) from 1 March.
  • As on 19 January, DG GROW, which is in charge of reviewing public procurement procedures, had received over 100 notifications / declarations. DG GROW also opened its first in-depth investigation into foreign subsidies received by CRRC, a Chinese rolling stock manufacturer.

Continue Reading The EU Foreign Subsidies Regulation – Key takeaways from the first 100 days

Recent proposals to amend the UK’s national security investment screening regime mean that investors may in future be required to make mandatory, suspensory, pre-closing filings to the UK Government when seeking to invest in a broader range of companies developing generative artificial intelligence (AI). The UK Government launched a Call for Evidence in

Continue Reading UK Government Consults on Amending Mandatory Filing Obligations for AI Acquisitions

The EU Foreign Subsidies Regulation (FSR) adopted in December 2022 creates a new instrument to prevent foreign subsidies from distorting the European Union (EU) internal market. It aims to fill a perceived regulatory gap left by EU State aid rules applying to subsidies granted by EU countries but not by foreign states. It started to

Continue Reading What does the new EU Foreign Subsidies Regulation (FSR) mean for companies doing business in the EU?

The Foreign Subsidies Regulation (“FSR”) enters into force today, 12 July 2023. It 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. Two days ago, on 10 July 2023, the European Commission (the “Commission”) adopted the Implementing Regulation (“IR”), which sets out the procedure and enacts the notifications forms. 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. To facilitate its implementation, the European Commission (“Commission”) aims to publish an accompanying DMA Implementing Regulation  (“IR”). In anticipation of this, the Commission has sought feedback via a public consultation on the draft 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 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 “well before” the DMA starts applying in May 2023, 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 the position as currently set out 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

Continue Reading EU Foreign Subsidies Regulation – Key Takeaways

On Episode 20 of Covington’s Inside Privacy Audiocast, Dan Cooper, Co-Chair of Covington’s Data Privacy and Cyber Security practice, and Christian Ahlborn, Partner in Covington’s Competition practice, discuss the recently enacted EU Digital Markets Act (DMA) in the first part of our “Competition and Privacy” mini series.

For more information on the DMA

Continue Reading Inside Privacy Audiocast: Episode 20 – Competition and Privacy Series: The EU’s Digital Markets Act

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:

  • As under EU State aid law, a foreign subsidy includes any form of public support granted by a third country, e.g., direct grants, capital injections, interest-free or low-interest loans, etc., but also support such as tax exemptions or reductions, and exclusive rights without proper remuneration.
  • From 12 October 2023, when acquiring control of a company in the EU or participating in a public tender in the EU, companies will have to notify the European Commission (Commission) of foreign subsidies received, if the relevant thresholds are met, or if the Commission so requests. Notifications have suspensive effect. Failure to notify may lead to severe sanctions.
  • The Commission may launch ex officio investigations into other market situations that are not already caught by other legislation.
  • If the Commission deems that a foreign subsidy distorts the internal market, the beneficiary may need to apply remedies, such as reducing its market presence. If these remedies are not effective, the Commission may prohibit a concentration or the award of a public procurement contract that is not yet closed.

Continue Reading The EU Foreign Subsidies Regulation enters into force