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Document 02022R2560-20221223
Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market
Consolidated text: Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market
Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market
02022R2560 — EN — 23.12.2022 — 000.002
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
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REGULATION (EU) 2022/2560 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 December 2022 on foreign subsidies distorting the internal market (OJ L 330 23.12.2022, p. 1) |
Corrected by:
REGULATION (EU) 2022/2560 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 14 December 2022
on foreign subsidies distorting the internal market
CHAPTER 1
GENERAL PROVISIONS
Article 1
Subject matter and scope
Article 2
Definitions
For the purposes of this Regulation, the following definitions apply:
‘an undertaking’, in the context of public procurement procedures, means ‘economic operator’ as defined in Article 1, point (14) of Directive 2009/81/EC, Article 5, point (2) of Directive 2014/23/EU, Article 2(1), point (10) of Directive 2014/24/EU and Article 2, point (6) of Directive 2014/25/EU;
‘contract’, in the context of public procurement procedures and unless otherwise specified, means a public contract as defined in Article 2(1), point (5) of Directive 2014/24/EU, ‘contracts’ as defined in Article 1, point (2) of Directive 2009/81/EC and ‘supply, works and service contracts’ as defined in Article 2, point (1) of Directive 2014/25/EU, as well as ‘concessions’ as defined in Article 5, point (1) of Directive 2014/23/EU;
‘a public procurement procedure’ means:
any type of award procedure covered by Directive 2014/24/EU for the conclusion of a public contract or Directive 2014/25/EU for the conclusion of a supply, works and service contract;
a procedure for the award of a works or a service concession covered by Directive 2014/23/EU;
procedures for awarding contracts falling under Directive 2009/81/EC, unless exempted by Member States on the basis of Article 346 TFEU;
procedures for the award of contracts referred to in Article 10(4), point (a) of Directive 2014/23/EU, Article 9(1), point (a) of Directive 2014/24/EU or Article 20(1), point (a) of Directive 2014/25/EU;
‘contracting authority’ in the context of public procurement procedures, means contracting authority as defined in Article 1, point (17) of Directive 2009/81/EC, Article 6 of Directive 2014/23/EU, Article 2(1), point (1) of Directive 2014/24/EU and Article 3 of Directive 2014/25/EU;
‘contracting entity’ in the context of public procurement procedures, means contracting entity as defined in Article 1, point (17) of Directive 2009/81/EC, Article 7 of Directive 2014/23/EU and Article 4 of Directive 2014/25/EU;
‘a multi-stage procedure’ means a public procurement procedure in accordance with Articles 28 to 32 of Directive 2014/24/EU and Articles 46 to 52 of Directive 2014/25/EU, either the restricted procedure, a competitive procedure with negotiation, a negotiated procedure without prior publication, a competitive dialogue or an innovation partnership, or a similar procedure according to Directive 2014/23/EU.
Article 3
Existence of a foreign subsidy
For the purposes of this Regulation, a financial contribution shall include, inter alia:
the transfer of funds or liabilities, such as capital injections, grants, loans, loan guarantees, fiscal incentives, the setting off of operating losses, compensation for financial burdens imposed by public authorities, debt forgiveness, debt to equity swaps or rescheduling;
the foregoing of revenue that is otherwise due, such as tax exemptions or the granting of special or exclusive rights without adequate remuneration; or
the provision of goods or services or the purchase of goods or services.
A financial contribution provided by a third country shall include a financial contribution provided by:
the central government and public authorities at all other levels;
a foreign public entity whose actions can be attributed to the third country, taking into account elements such as the characteristics of the entity and the legal and economic environment prevailing in the State in which the entity operates, including the government’s role in the economy; or
a private entity whose actions can be attributed to the third country, taking into account all relevant circumstances.
Article 4
Distortions in the internal market
A distortion in the internal market shall be deemed to exist where a foreign subsidy is liable to improve the competitive position of an undertaking in the internal market and where, in doing so, that foreign subsidy actually or potentially negatively affects competition in the internal market. A distortion in the internal market shall be determined on the basis of indicators, which can include, in particular, the following:
the amount of the foreign subsidy;
the nature of the foreign subsidy;
the situation of the undertaking, including its size and the markets or sectors concerned;
the level and evolution of economic activity of the undertaking on the internal market;
the purpose and conditions attached to the foreign subsidy as well as its use on the internal market.
Article 5
Categories of foreign subsidies most likely to distort the internal market
A foreign subsidy is most likely to distort the internal market where it falls under one of the following categories:
a foreign subsidy granted to an ailing undertaking, namely an undertaking which will likely go out of business in the short or medium term in the absence of any subsidy, unless there is a restructuring plan that is capable of leading to the long-term viability of that undertaking and that plan includes a significant own contribution by the undertaking;
a foreign subsidy in the form of an unlimited guarantee for the debts or liabilities of the undertaking, namely without any limitation as to the amount or the duration of such guarantee;
an export financing measure that is not in line with the OECD Arrangement on officially supported export credits;
a foreign subsidy directly facilitating a concentration;
a foreign subsidy enabling an undertaking to submit an unduly advantageous tender on the basis of which the undertaking could be awarded the relevant contract.
Article 6
Balancing test
Article 7
Commitments and redressive measures
Commitments or redressive measures may consist, inter alia, of the following:
offering access under fair, reasonable, and non-discriminatory conditions to infrastructure, including research facilities, production capabilities or essential facilities, that were acquired or supported by the foreign subsidies distorting the internal market unless such access is already provided for by Union legislation;
reducing capacity or market presence, including by means of a temporary restriction on commercial activity;
refraining from certain investments;
the licensing on fair, reasonable and non-discriminatory terms of assets acquired or developed with the help of foreign subsidies;
the publication of results of research and development;
the divestment of certain assets;
requiring the undertakings to dissolve the concentration concerned;
the repayment of the foreign subsidy, including an appropriate interest rate, calculated in accordance with the method set out in Commission Regulation (EC) No 794/2004 ( 1 );
requiring the undertakings concerned to adapt their governance structure.
Article 8
Information on future concentrations and public procurement procedures
In decisions adopted pursuant to Articles 11, 25 and 31, and where proportionate and necessary, the undertaking under investigation may be required to inform the Commission, for a limited period of time, of its participation in concentrations or public procurement procedures. That requirement is without prejudice to notification obligations pursuant to Articles 21 and 29.
CHAPTER 2
EX OFFICIO REVIEW AND GENERAL PROVISIONS FOR THE REVIEW OF FOREIGN SUBSIDIES
Article 9
Ex officio review of foreign subsidies
Such reviews shall not result in the cancellation of the decision awarding a contract or in a termination of a contract.
Article 10
Preliminary review
Where the Commission considers that the information referred to in Article 9 indicates the possibility that a foreign subsidy distorting the internal market exists, the Commission shall seek all the information it considers necessary to assess, on a preliminary basis, whether the financial contribution under examination constitutes a foreign subsidy and whether it distorts the internal market. To that end, the Commission may, in particular:
request information in accordance with Article 13; and
conduct inspections within and outside the Union in accordance with Article 14 or Article 15.
Where the Commission, based on the preliminary review, has sufficient indications that an undertaking has been granted a foreign subsidy that distorts the internal market, it shall:
adopt a decision to initiate an in-depth investigation (‘decision to initiate the in-depth investigation’) which summarises the relevant issues of fact and law and includes the preliminary assessment of the existence of a foreign subsidy and of the actual or potential distortion in the internal market;
inform the undertaking under investigation;
inform Member States and, where the in-depth investigation is initiated in relation to a public procurement procedure, the contracting authority or contracting entity concerned; and
publish a notice in the Official Journal of the European Union inviting the submission of views in writing within a period of time prescribed by the Commission.
Article 11
In-depth investigation
The Commission shall adopt an implementing act in the form of a decision to raise no objection (‘no objection decision’) where it finds that:
the preliminary assessment as set out in its decision to initiate the in-depth investigation is not confirmed; or
a distortion in the internal market is outweighed by positive effects within the meaning of Article 6.
That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 48(2).
Article 12
Interim measures
To preserve competition in the internal market and prevent irreparable damage, the Commission may adopt an implementing act in the form of a decision ordering interim measures, where:
there are sufficient indications that a financial contribution constitutes a foreign subsidy and distorts the internal market; and
there is a risk of serious and irreparable damage to competition on the internal market.
That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 48(2).
Article 13
Requests for information
A request for information pursuant to paragraph 2 or 3 shall:
state its legal basis and its purpose, specify what information is required and set an appropriate time limit within which the information is to be provided;
contain a statement that if the information supplied is incorrect, incomplete or misleading, the fines or periodic penalty payments provided for in Article 17 could be imposed;
contain a statement that, pursuant to Article 16, a lack of cooperation allows the Commission to take a decision on the basis of the facts that are available to it.
The Commission may interview a natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation. Where an interview is not conducted on the premises of the Commission or by telephone or other electronic means, prior to the interview the Commission shall:
inform the Member State in whose territory the interview is to take place; or
obtain the agreement of the third country in whose territory the interview is to take place.
Article 14
Inspections within the Union
Where the Commission undertakes such an inspection, the officials authorised by the Commission to conduct an inspection shall be empowered to:
enter any premises, land and means of transport of the undertaking or association of undertakings;
examine books and other business records, irrespective of the medium on which they are stored,access any information which is accessible to the entity subject to the inspection and take, or request copies or extracts from, those books or records;
ask any representative or member of staff of the undertaking or association of undertakings for explanations of facts or documents relating to the subject-matter and purpose of the inspection and to record the answers;
seal any business premises and books or records for the period of time of, and to the extent necessary for, the inspection.
The undertaking or association of undertakings shall submit to inspections ordered by decision of the Commission. The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a Commission decision:
specifying the subject matter and purpose of the inspection;
containing a statement that, pursuant to Article 16, a lack of cooperation allows the Commission to take a decision on the basis of the facts that are available to it;
referring to the possibility to impose fines or periodic penalty payments provided for in Article 17; and
stating the right to have the decision reviewed by the Court of Justice pursuant to Article 263 TFEU.
Article 15
Inspection outside the Union
In order to carry out the duties assigned to it by this Regulation, the Commission may conduct inspections in the territory of a third country, provided that the government of that third country has been officially notified and raises no objection to the inspection. The Commission may also ask the undertaking or association of undertakings to give its consent to the inspection. Article 14(1), (2), and (3), points (a) and (b) shall apply mutatis mutandis.
Article 16
Non-cooperation
The Commission may take a decision pursuant to Article 10, Article 11, Article 25(3), point (c) or Article 31(2), on the basis of the facts available, where an undertaking under investigation or a third country that granted the foreign subsidy:
provides incomplete, incorrect or misleading information in response to a request for information under Article 13;
fails to provide the information requested within the time limit prescribed by the Commission;
refuses to submit to the Commission’s inspection within or outside the Union ordered under Article 14 or Article 15; or
otherwise impedes the preliminary review or the in-depth investigation.
Article 17
Fines and periodic penalty payments
The Commission may, by decision, impose fines or periodic penalty payments where an undertaking or an association of undertakings, intentionally or negligently:
supplies incomplete, incorrect or misleading information in response to a request for information under Article 13, or does not supply the information within the prescribed time limit;
produces the required books or other records related to the business in incomplete form during inspections under Article 14;
in response to a question asked in accordance with Article 14(2), point (c):
gives an incorrect or misleading answer;
fails to rectify within a time-limit set by the Commission an incorrect, incomplete or misleading answer given by a member of staff; or
fails or refuses to provide a complete answer on facts relating to the subject-matter and purpose of an inspection ordered by a decision adopted pursuant to Article 14(3);
refuses to submit to inspections ordered under Article 14 or has broken seals affixed in accordance with Article 14(2), point (d); or
fails to comply with the conditions for access to the file or the terms of disclosure imposed by the Commission pursuant to Article 42(4).
Where an undertaking does not comply with a decision with commitments pursuant to Article 11(3), a decision ordering interim measures pursuant to Article 12 or a decision with redressive measures pursuant to Article 11(2), the Commission may, by decision, impose:
fines not exceeding 10 % of the aggregate turnover of the undertaking concerned in the preceding financial year; or
periodic penalty payments not exceeding 5 % of the average daily aggregate turnover of the undertaking concerned in the preceding financial year for each day of non-compliance, starting from the day of the Commission decision imposing such penalty payments, until the Commission finds that the undertaking concerned complies with the decision.
The Commission may also impose such fines or periodic penalty payments where an undertaking does not comply with a decision adopted pursuant to Article 11, 25 or 31, which obliged the undertaking to inform the Commission of its future participation in concentrations or public procurement procedures pursuant to Article 8.
Article 18
Revocation
The Commission may revoke a decision taken pursuant to Article 11(2), (3) or (4), Article 25(3), and Article 31(1), (2) or (3), and adopt a new implementing act in the form of a decision in any of the following cases where:
the undertaking to which the initial decision was addressed acts contrary to its commitments or the redressive measures imposed;
the initial decision was based on incomplete, incorrect or misleading information;
commitments or redressive measures are not effective.
That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 48(2).
CHAPTER 3
CONCENTRATIONS
Article 19
Distortions in the internal market caused by foreign subsidies in concentrations
When assessing whether a foreign subsidy in a concentration distorts the internal market within the meaning of Article 4 or 5, that assessment shall be limited to the concentration concerned. Only foreign subsidies granted in the three years prior to the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest shall be considered in the assessment.
Article 20
Concentrations and notification thresholds
For the purposes of this Regulation, a concentration shall be deemed to arise where a change of control on a lasting basis results from either of the following:
the merger of two or more previously independent undertakings or parts of undertakings;
the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more other undertakings.
For the purposes of this Regulation, a notifiable concentration shall be deemed to arise where, in a concentration:
at least one of the merging undertakings, the acquired undertaking or the joint venture is established in the Union and generates an aggregate turnover in the Union of at least EUR 500 million; and
the following undertakings were granted combined aggregate financial contributions of more than EUR 50 million from third countries in the three years preceding the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest:
in the case of an acquisition, the acquirer or acquirers and the acquired undertaking;
in the case of a merger, the merging undertakings;
in the case of a joint venture, the undertakings creating a joint venture and the joint venture.
A concentration shall not be deemed to arise where:
credit institutions or other financial institutions or insurance companies, the normal activities of which include transactions and dealing in securities for their own account or for the account of others, hold on a temporary basis securities which they have acquired in an undertaking with a view to reselling them, provided that they do not exercise voting rights in respect of those securities with a view to determining the competitive conduct of that undertaking or provided that they exercise such voting rights only with a view to preparing the disposal of all or part of that undertaking or of its assets or the disposal of those securities and that any such disposal takes place within one year of the date of acquisition;
control is acquired by an office-holder according to the law of a Member State relating to liquidation, winding up, insolvency, cessation of payments, compositions or analogous proceedings;
the operations referred to in paragraph 1, point (b) are carried out by the financial holding undertakings as defined in Article 2, point 15 of Directive 2013/34/EU of the European Parliament and of the Council ( 2 ) provided that the voting rights in respect of the holding are exercised, in particular in relation to the appointment of members of the management and supervisory bodies of the undertakings in which they have holdings, only to maintain the full value of those investments and not to determine directly or indirectly the competitive conduct of those undertakings.
The period of one year referred to in the first subparagraph, point (a) may be extended by the Commission on request where the institutions or companies concerned can show that the disposal was not reasonably possible within the period set.
Control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by:
ownership or the right to use all or part of the assets of an undertaking;
rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.
Control shall be acquired by persons or undertakings which:
are holders of the rights or entitled to rights under the contracts concerned; or
while not being holders of such rights or entitled to rights under such contracts, have the power to exercise the rights deriving therefrom.
Article 21
Prior notification of concentrations
Article 22
Calculation of turnover
Turnover in the Union shall comprise products sold and services provided to undertakings or consumers in the Union.
However, two or more transactions within the meaning of the first subparagraph of this paragraph which take place within a two-year period between the same persons or undertakings shall be treated as one and the same concentration arising on the date of the latest transaction.
The following shall be used instead of turnover:
for credit institutions and other financial institutions, the sum of the following income items as defined in Council Directive 86/635/EEC ( 3 ), after deduction of value added tax and other taxes directly related to those items, where appropriate:
interest income and similar income;
income from securities:
commissions receivable;
net profit on financial operations;
other operating income;
for insurance undertakings, the value of gross premiums written which comprises all amounts received and receivable in respect of insurance contracts issued by or on behalf of the insurance undertakings, including also outgoing reinsurance premiums, and after the deduction of taxes and parafiscal contributions or levies charged by reference to the amounts of individual premiums or the total volume of premiums.
For the purposes of point (a), for a credit institution or financial institution the turnover in the Union shall comprise the income items, as defined in that point, which are received by the branch or division of that institution established in the Union.
For the purpose of point (b), for an insurance undertaking, the turnover in the Union shall comprise gross premiums received from Union residents.
Without prejudice to paragraph 2, the aggregate turnover of an undertaking concerned shall be calculated by adding together the respective turnovers of:
the undertaking concerned;
the undertakings in which the undertaking concerned, directly or indirectly:
owns more than half the capital or business assets,
has the power to exercise more than half the voting rights,
has the power to appoint more than half the members of the supervisory board, the administrative board or bodies legally representing those undertakings, or
has the right to manage the affairs of those undertakings;
the undertakings which have in the undertaking concerned any of the rights or powers referred to in point (b);
the undertakings in which an undertaking as referred to in point (c) has any of the rights or powers referred to in point (b);
the undertakings in which two or more undertakings as referred to in points (a) to (d) jointly have any of the rights or powers referred to in point (b).
Where undertakings concerned jointly have the rights or powers listed in paragraph 4, point (b), in calculating the aggregate turnover of the undertakings concerned:
account shall be taken of the turnover resulting from the sale of products and the provision of services between the joint undertaking and any third undertakings, and this turnover shall be apportioned equally amongst the undertakings concerned;
no account shall be taken of the turnover resulting from the sale of products or the provision of services between the joint undertaking and each of the undertakings concerned or any other undertaking connected with any one of them, as set out in paragraph 4, points (b) to (e).
Article 23
Aggregation of financial contributions
The aggregate financial contribution to an undertaking concerned shall be calculated by adding together the respective financial contributions provided by third countries to all undertakings referred to in Article 22(2) and Article 22(4), points (a) to (e).
Article 24
Suspension of concentrations and time limits
In addition:
where the Commission receives a complete notification, the concentration shall not be implemented for a period of 25 working days after that receipt;
where the Commission initiates an in-depth investigation no later than 25 working days after receipt of the complete notification, the concentration shall not be implemented for a period of 90 working days after the opening of the in-depth investigation. That period shall be extended by 15 working days where the undertakings concerned offer commitments pursuant to Article 7 with a view to remedying the distortion in the internal market;
where the Commission has adopted a decision under Article 25(3), point (a) or (b), the concentration may be implemented thereafter.
The period of time referred to in points (a) and (b) shall begin on the working day following that of the receipt of the complete notification or of the adoption of the relevant Commission decision.
Paragraph 1 shall not prevent the implementation of a public bid or of a series of transactions in securities including those convertible into other securities admitted to trading on a market such as a stock exchange, by which control is acquired from various sellers, provided that:
the concentration is notified to the Commission pursuant to Article 21 without delay; and
the acquirer does not exercise the voting rights attached to the securities in question or does so only to maintain the full value of its investments based on a derogation granted by the Commission under paragraph 3 of this Article.
The time limits provided for in paragraph 1, point (b) of this Article may be extended at any time following the opening of the in-depth investigation, by the Commission with the agreement of the undertakings concerned.
The total duration of any extension or extensions pursuant to this paragraph shall not exceed 20 working days.
The Commission may adopt a decision pursuant to Article 25(3) without being bound by the time limits referred to in paragraphs 1 and 4 of this Article, where:
it finds that a concentration has been implemented in breach of the commitments attached to a decision taken under Article 25(3), point (a); or
a decision has been revoked pursuant to Article 25(1).
Article 25
Procedural rules applicable to the preliminary review and the in-depth investigation of notified concentrations
After the in-depth investigation, the Commission shall adopt an implementing act in the form of one of the following decisions:
a decision with commitments pursuant to Article 11(3);
a no objection decision pursuant to Article 11(4); or
a decision prohibiting a concentration, where the Commission finds that a foreign subsidy distorts the internal market pursuant to Articles 4 to 6.
Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 48(2).
The Commission may, where it finds that a concentration notifiable under Article 21(1) or notified upon request of the Commission under Article 21(5) has already been implemented and that foreign subsidies in that concentration distort the internal market pursuant to Articles 4, 5 and 6, adopt one of the following measures:
require the undertakings concerned to dissolve the concentration, in particular through the dissolution of the merger or the disposal of all the shares or assets acquired, to restore the situation prevailing prior to the implementation of the concentration; or, where that restoration is not possible through dissolution of the concentration, any other measure appropriate to achieve such restoration as far as possible;
order any other appropriate measure to ensure that the undertakings concerned dissolve the concentration or take other restorative measures as required in its decision.
The Commission may impose the measures referred to in points (a) and (b) of this paragraph either in a decision pursuant to paragraph 3, point (c), of this Article or by separate decision.
The Commission may adopt, by means of an implementing act in the form of a decision, any of the measures referred to in points (a) or (b) of this paragraph where it finds that a concentration has been implemented in breach of a decision taken pursuant to paragraph (3), point (a), of this Article which has found that, in the absence of the commitments, the concentration would fulfil the criterion laid down in paragraph 3, point (c) of this Article.
Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 48(2).
The Commission may also adopt an implementing act in the form of a decision ordering interim measures referred to in Article 12 where:
a concentration has been implemented in breach of Article 21;
a concentration has been implemented in breach of a decision with commitments under paragraph 3, point (a) of this Article.
Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 48(2).
Article 26
Fines and periodic penalty payments applicable to concentrations
The Commission may, by decision, also impose fines upon undertakings concerned not exceeding 10 % of their aggregate turnover in the preceding financial year where those undertakings, intentionally or negligently:
fail to notify a notifiable concentration in accordance with Article 21 prior to its implementation, unless they are expressly authorised to do so by Article 24;
implement a notified concentration in breach of Article 24;
implement a notified concentration prohibited in accordance with Article 25(3), point (c);
circumvented or attempted to circumvent the notification requirements, as referred to in Article 39(1).
CHAPTER 4
PUBLIC PROCUREMENT PROCEDURES
Article 27
Foreign subsidies distorting the internal market in the context of public procurement procedures
Foreign subsidies that cause or risk causing a distortion in a public procurement procedure shall be understood as foreign subsidies that enable an economic operator to submit a tender that is unduly advantageous in relation to the works, supplies or services concerned. The assessment pursuant to Article 4 of whether there is a distortion in the internal market and whether a tender is unduly advantageous in relation to the works, supplies or services concerned shall be limited to the public procurement procedure in question. Only foreign subsidies granted during the three years prior to the notification shall be taken into account in the assessment.
Article 28
Notification thresholds in public procurement procedures
For the purposes of this Regulation, a notifiable foreign financial contribution in a public procurement procedure shall be deemed to arise where:
the estimated value of that public procurement or framework agreement net of VAT, calculated in accordance with the provisions laid down in Article 8 of Directive 2014/23/EU, Article 5 of Directive 2014/24/EU and Article 16 of Directive 2014/25/EU, or a specific procurement under the dynamic purchasing system, is equal to or greater than EUR 250 million; and
the economic operator, including its subsidiary companies without commercial autonomy, its holding companies, and, where applicable, its main subcontractors and suppliers involved in the same tender in the public procurement procedure was granted aggregate financial contributions in the three years prior to notification or, if applicable, the updated notification, equal to or greater than EUR 4 million per third country.
Article 29
Prior notification or declaration of foreign financial contributions in the context of public procurement procedures
Article 30
Procedural rules applicable to the preliminary review and the in-depth investigation of notified financial contributions in public procurement procedures
Article 31
Commission decisions
Article 32
Evaluations in public procurement procedures involving a notification and suspension of award
Article 33
Fines and periodic penalty payments applicable to financial contributions in the context of public procurement procedures
The Commission may, by decision, impose fines upon the economic operators concerned that do not exceed 10 % of their aggregate turnover in the preceding financial year where those economic operators, intentionally or negligently:
fail to notify foreign financial contributions in accordance with Article 29 during the public procurement procedure;
circumvent or attempt to circumvent the notification requirements, as referred to in Article 39(1).
CHAPTER 5
COMMON PROCEDURAL PROVISIONS
Article 34
Relationship between procedures
Article 35
Communication of information
Article 36
Market investigation
Article 37
Third-country dialogue
Article 38
Limitation periods
The limitation period shall expire at the latest on the day on which twice the amount of time of that limitation period has elapsed provided that the Commission has not:
taken a decision pursuant to Article 10 or 11 in the instances set out in paragraph 1 of this Article; or
imposed a fine or a periodic penalty payment in the situation set out in paragraph 2 of this Article.
Article 39
Anti-circumvention
Article 40
Publication of decisions
Article 41
Addressees of decisions
Article 42
Disclosure and rights of defence
The right of access to the file shall be subject to the legitimate interest of undertakings or associations of undertakings in the protection of their business secrets and other confidential information. The Commission may ask the undertaking under investigation and the undertakings or associations of undertakings that provided information to the Commission to agree on terms to disclose that information. If the undertakings or associations of undertakings disagree on those terms, the Commission shall have the power to impose the terms on which the information is to be disclosed.
Nothing in this paragraph shall prevent the Commission from using and disclosing, to the extent necessary, information that demonstrates the existence of a foreign subsidy distorting the internal market.
Article 43
Professional secrecy and confidentiality
CHAPTER 6
RELATIONSHIP TO OTHER INSTRUMENTS
Article 44
Relationship to other instruments
CHAPTER 7
TRANSITIONAL AND FINAL PROVISIONS
Article 45
Review by the Court of Justice
In accordance with Article 261 TFEU, the Court of Justice of the European Union shall have unlimited jurisdiction to review decisions by which the Commission has imposed fines or periodic penalty payments. It may cancel, reduce or increase the fine or periodic penalty payment imposed.
Article 46
Guidelines
The Commission shall publish, at the latest on 13 January 2026, and shall regularly update thereafter, guidelines regarding:
the application of the criteria for determining the existence of a distortion according to Article 4(1);
the application of the balancing test in accordance with Article 6;
the application of its power to request the prior notification of any concentration according to Article 21(5) or foreign financial contributions received by an economic operator in a public procurement procedure according to Article 29(8), and
the assessment of a distortion in a public procurement procedure according to Article 27.
Article 47
Implementing acts
The Commission is empowered to adopt implementing acts concerning:
the form, content and procedural details of notifications of concentrations pursuant to Article 21, including a possible simplified procedure, taking utmost account of the goal of limiting administrative burden for notifying parties pursuant to Article 21 of this Regulation and Article 4 of Regulation (EC) No 139/2004;
the form, content and procedural details of notifications of foreign financial contributions and declaration of no foreign financial contribution in public procurement procedures pursuant to Article 29, including a possible simplified procedure;
procedural details for oral statements pursuant to Article 13(7), Article 14(2), point (c) and Article 15;
details of the disclosure pursuant to Article 42 and professional secrecy pursuant to Article 43;
the form, content and procedural details of transparency requirements;
detailed rules on the calculation of time limits;
the procedural details and time limits for proposing commitments under Articles 25 and 31;
detailed rules on the procedural steps referred to in Articles 29to 32 concerning investigations regarding public procurement procedures.
Article 48
Committee procedure
Article 49
Delegated acts
The Commission is empowered to adopt a delegated act in accordance with Article 50 for the purposes of amending, where necessary, the threshold for notifications of concentrations as set out in Article 20(3), point (a), by increasing the threshold by up to 20 % or decreasing the threshold by up to 20 %, after having:
assessed that threshold in the light of its experience gained in the course of implementing and enforcing this Regulation; and
established the necessity of amending that threshold in order to:
ensure that the notification procedures set out in Chapter 3 enable the accurate identification of foreign subsidies distorting the internal market;
ensure a reasonable administrative burden on the Commission and the undertakings concerned; and
enhance the effectiveness of the application of this Regulation.
For the purposes of evaluating the necessity of amending the threshold for notifications, pursuant to paragraph 1, the Commission shall conduct its assessment, covering a defined period of time which cannot be shorter than two years, in particular on the basis of the following objective criteria:
the proportion of notifications pursuant to Article 21(1) which resulted either in the Commission closing the preliminary review pursuant to Article 10(4) or in the Commission adopting a no objection decision pursuant to Article 25(3), point (b);
the proportion of notifications pursuant to Article 21(1) which resulted either in the Commission adopting a decision prohibiting a concentration pursuant to Article 25(3), point (c), or a decision with commitments pursuant to Article 25(3), point (a);
the proportion of notifications pursuant to Article 21(5) which resulted in the Commission adopting either a decision prohibiting a concentration pursuant to Article 25(3), point (c), or a decision with commitments pursuant to Article 25(3), point (a);
the proportion of ex officio reviews pursuant to Article 9 in the context of concentrations not notifiable within the meaning of Article 20 which resulted either in a decision with redressive measures pursuant to Article 11(2) or in a decision with commitments pursuant to Article 11(3);
the comparison between the threshold set out in Article 20(3), point (a), and the average aggregate turnover, above that threshold, in the cases which resulted in either a decision prohibiting a concentration pursuant to Article 25(3), point (c), or a decision with commitments pursuant to Article 25(3), point (a);
the number of notifications pursuant to Article 21(1) and the evolution of that number.
In order to raise the thresholds in Article 20(3), point (a), the assessment referred to in paragraph 2 of this Article shall demonstrate that:
a large part of decisions prohibiting a concentration pursuant to Article 25(3), point (c), or decisions with commitments pursuant to Article 25(3), point (a), concerned cases where the aggregate turnover, above the threshold referred to in Article 20(3), point (a), was substantially higher than that threshold; or
a large part of the notifications pursuant to Article 21(1) resulted either in the Commission closing the preliminary review pursuant to Article 10(4) or in the Commission adopting a no objection decision pursuant to Article 25(3), point (b).
In order to decrease the thresholds in Article 20(3), point (a), the assessment referred in paragraph 2 of this Article shall demonstrate that:
a large part of notifications pursuant to Article 21(5) resulted in the Commission adopting either a decision prohibiting a concentration pursuant to Article 25(3), point (c), or a decision with commitments pursuant to Article 25(3), point (a); or
a large part of ex officio reviews of foreign subsidies in the context of concentrations which were not notifiable concentrations within the meaning of Article 20 resulted in the Commission adopting either a decision with redressive measures pursuant to Article 11(2) or a decision with commitments pursuant to Article 11(3).
The Commission is empowered to adopt a delegated act in accordance with Article 50 for the purposes of amending, where necessary, the thresholds for notifications as set out in Articles 28(1), point (a), and 28(2) for public procurement by increasing by up to 20 % or decreasing by up to 20 %, after having:
assessed those thresholds in the light of its experience gained in the course of implementing and enforcing this Regulation; and
established the necessity of amending those thresholds in order to:
ensure that the notification procedures set out in Chapter 4 enable the accurate identification of foreign subsidies distorting the internal market;
ensure a reasonable administrative burden on the Commission and the economic operators concerned; and
enhance the effectiveness of the application of this Regulation.
For the purposes of evaluating the necessity of amending the threshold for notifications, pursuant to paragraph 5, the Commission shall conduct its assessment, covering a defined period of time which cannot be shorter than two years, in particular on the basis of the following objective criteria:
the proportion of notifications pursuant to Article 29(1) which resulted either in the Commission closing the preliminary review pursuant to Article 10(4) or in the Commission adopting a no objection decision pursuant to Article 31(3);
the proportion of notifications pursuant to Article 29(1) which resulted either in the Commission adopting a decision prohibiting the award of the contract pursuant to Article 31(2) or a decision with commitments pursuant to Article 31(1);
the proportion of notifications pursuant to Article 29(8) which resulted in the Commission adopting either a decision prohibiting the award of the contract pursuant to Article 31(2) or a decision with commitments pursuant to Article 31(1);
the number of decisions with redressive measures pursuant to Article 11(2) and of decisions with commitments pursuant to Article 11(3), following an ex officio review pursuant to Article 9 in the context of a foreign financial contribution in a public procurement procedure which was not notifiable within the meaning of Article 28(1) or which fell within the scope of Article 30(4), in relation to the overall number of such ex officio reviews;
the comparison between the respective thresholds set out in Articles 28(1), point (a), and 28(2) and the average estimated value of the contracts or the average value of the lots, above the respective threshold, in the cases which resulted with either a decision prohibiting the award of the contract pursuant to Articles 31(2) or a decision with commitments pursuant to Article 31(1);
the number of notifications pursuant to Article 29(1) and the evolution of that number.
In order to increase the thresholds for notifications, the assessment referred to in paragraph 6 shall demonstrate that:
a large part of the decisions prohibiting the award of the contract pursuant to Article 31(2) and decisions with commitments pursuant to Article 31(1) concerned cases where the estimated value of the contracts, above the threshold referred to in Article 28(1), point (a), or where the value of the lots applied for, above the threshold referred to in Article 28(2), was substantially higher than the respective thresholds set out in Articles 28(1), point (a), and 28(2); or
a large part of the notifications pursuant to Article 29(1) resulted either in the Commission closing the preliminary review pursuant to Article 10(4) or in the Commission adopting a no objection decision pursuant to Article 31(3).
In order to decrease the thresholds, the assessment referred to in paragraph 6 shall demonstrate that:
a large part of the notifications pursuant to Article 29(8) resulted in the Commission adopting either a decision with commitments pursuant to Article 31(1) or a decision prohibiting the award of the contract pursuant to Article 31(2); or
a large part of the ex officio reviews of foreign subsidies in the context of foreign financial contributions in a public procurement procedure which were not notifiable within the meaning of Article 28(1) or fell within the scope of Article 30(4) resulted in the Commission adopting either a decision with redressive measures pursuant to Article 11(2) or a decision with commitments pursuant to Article 11(3).
Article 50
Exercise of the delegation
Article 51
Separate delegated acts for different delegated powers
The Commission shall adopt a separate delegated act in respect of each power delegated to it pursuant to this Regulation.
Article 52
Reporting and review
Where the Commission considers it appropriate to combine the report with relevant legislative proposals, such proposals may include:
amending the thresholds for notifications as set out in Articles 20 and 28;
exempting certain categories of undertakings concerned from the obligation to notify pursuant to Articles 21 and 29, especially where the practice of the Commission enables the identification of economic activities where foreign subsidies are unlikely to distort the internal market;
establishing specific thresholds for notifications for certain economic sectors or differentiated thresholds for different types of public procurement contracts, especially where the practice of the Commission enables the identification of economic activities where foreign subsidies are more likely to distort the internal market, including as regards strategic sectors and critical infrastructure;
amending the timelines for review and in-depth investigations as set out in Articles 25 and 30;
abrogating this Regulation, if the Commission considers that multilateral rules to address foreign subsidies distorting the internal market have rendered this Regulation fully redundant.
Article 53
Transitional provisions
Article 54
Entry into force and date of application
This Regulation shall be binding in its entirety and directly applicable in all Member States.
( 1 ) Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EU) 2015/1589 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ L 140, 30.4.2004, p. 1).
( 2 ) Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).
( 3 ) Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (OJ L 372, 31.12.1986, p. 1).
( 4 ) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).
( 5 ) Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ L 176, 30.6.2016, p. 55).
( 6 ) Regulation (EU) 2022/1031 of the European Parliament and of the Council of 23 June 2022 on the access of third-country economic operators, goods and services to the Union’s public procurement and concession markets and procedures supporting negotiations on access of Union economic operators, goods and services to the public procurement and concession markets of third countries (International Procurement Instrument – IPI) (OJ L 173, 30.6.2022, p. 1).
( 7 ) Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ L 395, 30.12.1989, p. 33).
( 8 ) Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ L 76, 23.3.1992, p. 14).