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On 5 May 2021, the European Commission (“Commission“) published a proposed Regulation, along with an impact assessment report, aiming to address potential distortions caused by foreign subsidies in the Single Market (“Proposed Regulation“). This Proposed Regulation will create substantial new obligations for companies if adopted in its current form.

There are three new obligations in particular to be aware of:

  1. The Commission will have the ability to initiate ex officio reviews of foreign subsidies in the preceding 10 years, meaning companies may have to comply with requests for information (RFIs) and be subject to inspections. In addition, the Commission may conduct inspections both in the EU and outside the EU (subject to certain conditions).
  2. Companies may have to notify the Commission of any transaction financed by foreign subsidies. This filing obligation is in addition to any applicable merger filing requirements at the EU level or at the national level (see proposed thresholds below).
  3. Any company wanting to participate in any public procurement in the EU with a value greater than EUR 250 million will have to notify the Commission prior to submitting its tender offer and to provide a substantial amount of information about all foreign financial contributions received in the past three years. The Commission can also intervene in procurement processes with a value below these thresholds on an ex officio basis.

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Author

Paul Johnson is an of counsel in Baker McKenzie Brussels’ European & Competition Law Practice. He is an English qualified solicitor and has been practicing in Brussels and the UK for over 10 years. Before joining the Firm, Mr. Johnson worked as a technical specialist in the Competition Department of the UK Financial Conduct Authority. He also worked in private practice in Brussels and London, representing clients on numerous high-profile cases before the European Commission and national competition authorities and regulators around the world.

Author

Gavin Bushell is a partner in the European & Competition Law Practice Group in Brussels, where he advises clients on EU competition, state aid and aviation law. He has almost 20 years of experience practicing law and is a frequent speaker at legal conferences, particularly on merger control matters. In July 2018, Gavin was listed as one of a limited number of practitioners in the Who’s Who Legal: Thought Leaders – Competition 2019. Gavin is individually ranked in Chambers & Partners Global - Belgium for Competition Law in Band 3. "Gavin is lauded by sources as "fantastic! Always one step ahead. A great communicator and pleasant to work with even under the greatest pressure." He is particularly well regarded in the field of merger control and is most experienced in the pharmaceuticals and aviation sectors." He is described as "extremely hard-working, energetic and solution-finding. He is a young and hungry person with whom it is pleasant and efficient to work." "He's a great competition lawyer and business generator." Clients appreciate the fact that he "took the time to understand our business structure, our operations and our standards." In March 2012, Gavin was named by Global Competition Review as one of the top 40 of the world's leading competition practitioners under the age of 40 in its 40 under 40 survey. Gavin was chairman of the Law Society, Brussels Competition Section from 2012 to 2015. He is author of a number of articles on EU competition law. He is also a member of various legal and industry associations such as the European Air Law Association and the European Aviation Club.

Author

Nina Niejahr is a counsel in the Firm’s European & Competition Law Practice in Brussels and co-chair of the European State Aid Group. She is an active participant in the State Aid Working Group of the European Competition Lawyers Forum. Ms. Niejahr has published extensively and speaks regularly at seminars and conferences on a variety of EU competition and state aid law topics. She is the author of the chapter on EU legal protection in state aid cases, published in the 2011 Münchener Kommentar zum Wettbewerbsrecht (Kartellrecht) and in the 2016 Säcker/Montag European State Aid Law: A Commentary.

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