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