Péter Staviczky

European State Aid Law Quarterly, Volume 22 (2023), Issue 1, Page 78 - 85

Daniela Gschwindt, Julia Zöchling

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 225 - 229

Christopher Yukins

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 181 - 187

Ulrich Soltész

European State Aid Law Quarterly, Volume 22 (2023), Issue 2, Page 175 - 180

Andreas Haak, Barbara Thiemann

European State Aid Law Quarterly, Volume 21 (2022), Issue 1, Page 20 - 30

In her 2021 State of the European Union Address, European Commission President Ursula von der Leyen stressed ‘the importance of investing in our European tech sovereignty’ and continued by appealing that ‘[w]e have to double down to shape our digital transformation according to our own rules’. Availability of semiconductors (also referred to as microchips or simply as chips) is essential for industry and national security alike. Without microchips there is no tech sovereignty. Given the currently fragile state of global supply chains, expanding fabrication capacity within the EU is high on the political agenda. At the same time, ensuring fair competition is of paramount importance. While tech sovereignty must be matched by sufficient State funding, it still needs to be awarded in compliance with EU State aid rules. These rules must not work as an impediment to tech sovereignty. Furthermore, the rules of the game must be the same for everyone. This regulatory objective is most evident in the draft Distortive Foreign Subsidies Regulation. Keywords: twin transition; ICPEI; supply chain; sovereignty; EU Chips Act; foreign subsidies

Justyna Smela Wolski

European State Aid Law Quarterly, Volume 21 (2022), Issue 2, Page 153 - 172

This article explores the possible legal bases of the Proposal for a Regulation on Foreign Subsidies, which, at first glance, displays elements of competition, internal market, and common commercial policy. It is argued, in particular, that the Proposal does not fulfil the requirements regarding the use of Article 114 TFEU established in the Court’s case law despite its self-proclaimed goal of removing ‘distortions within the internal market’. Firstly, it is disputed that foreign subsidies can fall within the scope of a Member State’s competence. Secondly, even if the former reasoning were proved to be wrong, it is difficult to hold that the goal of the Regulation is to harmonize in order to prevent future obstacles to trade between Member States. In any case, should a general basis be needed due to the effects of the Regulation on the internal market, Article 352 TFEU would be a more plausible option, insofar as it applies to non-harmonisable areas and to the creation of new legal forms, such as foreign subsidies, which are at the crossroads of the notion of State aid of Article 107 TFEU and the notion of subsidy of the Anti-Subsidy Regulation. Nevertheless, it is concluded that the entirety of the Proposal could be based on Article 207 TFEU if a teleological and wide interpretation of the common commercial policy, such as that of Opinion 1/78, is followed. Notably, it is argued that the restoration of effective competition within the internal market is not a goal in itself, but rather a consequence of remediating undesirable trade-related behaviours of third countries. Finally, the role that the Regulation, if adopted, will play in Moldova and Ukraine is studied. Keywords: foreign subsidies; common commercial policy; trade; competition; internal market; legal basis

Morris Schonberg

European State Aid Law Quarterly, Volume 21 (2022), Issue 2, Page 143 - 152

The EU Institutions have now reached political agreement in relation to the Foreign Subsidies Regulation, a potentially far-reaching instrument that effectively creates a new subsidy control regime for non-EU subsidies affecting the EU's internal market. This article addresses the key substantive assessments that the European Commission will need to consider when investigating foreign subsidies under the Regulation, namely: (i) the existence of a ‘foreign subsidy’; (ii) whether the subsidy causes a ‘distortion’ in the internal market; (iii) whether the negative effects in the internal market may be balanced by any positive effects of the subsidy; and (iv) the determination of redressive measures or commitments required to address the distortions. It identifies a number of significant open issues and questions that could have a substantial effect on how the Regulation operates and ultimately, its impact in practice on competitive conditions within the internal market. Keywords: foreign subsidies; WTO; distortion; balancing; redressive measures

Raymond Luja

European State Aid Law Quarterly, Volume 20 (2021), Issue 2, Page 187 - 199

The European Commission proposed a Regulation to deal with the effects of foreign subsidies on the internal market. Undertakings involved in large mergers, acquisitions and upcoming joint ventures or those in the lead of submitting a tender may have to notify foreign subsidies directly or indirectly received in future. The proposal also allows the Commission to launch investigations into other foreign subsidies that distort the internal market. This contribution discusses both the material and formal framework as proposed and takes a first look at parallels and differences with the State aid regime governing intra-EU government subsidies, including guarantees and special tax treatment. The author recommends, inter alia, to clarify the concepts of ‘undertaking’ and ‘interim measures’, to limit notification to selective subsidies in the context of tenders, and to restrict the retroactive effect of the notification requirement in light of the administrative burden involved. Further suggestions to increase consistency and legal certainty have been included as well. As the new obligations imposed on undertakings may affect future public procurement procedures and concentrations, they should be given sufficient attention in time in order not to delay such procedures and to avoid fines or redressive measures. Keywords: foreign subsidies; common commercial policy; redressive measures; mergers; public procurement.