Philipp Werner, Henry De La Barre, Kristina Music

European Competition and Regulatory Law Review, Jahrgang 8 (2024), Ausgabe 1, Seite 23 - 37

This article provides an overview of the main features and implications of the EU Foreign Subsidies Regulation (FSR), which entered into force in 2023 to address the distortive effects of foreign subsidies on the EU internal market. It discusses the key concepts and thresholds for the notification and review of transactions and public procurement procedures involving foreign financial contributions, as well as the ex officio investigation tool and enforcement powers of the European Commission (EC). The article also highlights the challenges and uncertainties that the FSR poses for companies and their counsel, and the need for further guidance and clarification from the EC. The article looks at the decision practice and case law in related areas of EU law, such as State aid, trade, and competition law, to analyse the principles and procedures of the FSR. Keywords: Foreign subsidies; EU filing; public procurement

Adina Claici, Peter Davis, Gerhard Dijkstra

European Competition and Regulatory Law Review, Jahrgang 8 (2024), Ausgabe 1, Seite 4 - 16

In this paper, we consider the economic analysis that will be required in foreign subsidy reviews. We believe that the regime is right to adopt a case-by-case approach and that the European Commission’s analysis should be structured using well-defined theories of harm since doing so will (i) help focus the Commission’s analyses on what matters; and (ii) help reduce the risk of potentially significant error costs associated with over- or under-enforcement. The Foreign Subsidies Regulation (FSR) refers to a potential, non-exhaustive list of ‘indicators’ which it proposes to use to determine whether the foreign subsidy would distort the internal market. In this paper we provide an initial exploration of the proper role for said indicators by considering four potential theories of harm that foreign subsidies could trigger. Not all indicators will be relevant for all theories of harm, and, more generally, we illustrate the potential for theories of harm to distinguish the indicators that are relevant from those that are not. We also discuss (i) empirical evidence relating to the prevalence of foreign subsidies in different sectors of the EU economy and (ii) the importance of theories of harm for structuring evidence collection with the potential challenges and solutions when applying economic analysis to consider causality (whether the foreign subsidy distorted competition), and the magnitude – if any – of a foreign subsidy’s effects on market outcomes. Keywords: FSR; Foreign Subsidies; theory of harm; competition distortion

Robert Klotz

European Competition and Regulatory Law Review, Jahrgang 7 (2023), Ausgabe 1, Seite 1 - 3

European Competition and Regulatory Law Review, Jahrgang 7 (2023), Ausgabe 1,

Salomé Cisnal de Ugarte, Mélanie Perez, Ivan Pico

European Competition and Regulatory Law Review, Jahrgang 6 (2022), Ausgabe 1, Seite 17 - 23

The third decade of the 21st century promises to look very different for European merger control. After several very successful acquisitions by Big Tech companies, competition law enforcers are increasingly concerned that their merger control regimes might not capture transactions that may have anticompetitive effects in the long run. As a consequence, European regulators are taking various initiatives which make the merger control landscape increasingly fragmented and complex, ranging from the introduction of value-based jurisdictional thresholds and a new referral policy that can catch mergers post-closing, to ground breaking regulatory initiatives in the digital sphere, changes relating to the substantive assessment of mergers in dynamic markets and foreign direct investment and subsidies screenings. This results in decreasing legal certainty for companies engaging in cross-border M&A and increased transaction costs. Keywords: merger control, Digital Markets Act, referrals, Article 22 EUMR, foreign subsidies, dynamic competition