LinkingCompetition: EU Foreign Subsidies White Paper Series

At a time when protectionism is on the rise, and with EU Member States increasingly calling for stronger powers to address the impact of foreign subsidies across the EU, the European Commission has published a White Paper on levelling the playing field as regards foreign subsidies.

Whilst the EU and its Member States already have well-developed systems of antitrust, foreign investment control, state aid, merger control, trade, and public procurement, the White Paper suggests that these tools are not sufficient to address distortions of competition in the EU internal market that are specifically caused by foreign subsidies. The White Paper therefore proposes significant new powers for the Commission and EU Member States’ authorities to tackle this perceived regulatory gap.

This six part LinkingCompetition blog series is designed to guide you through the impact that the broad powers proposed in the White Paper are expected to have on the existing frameworks for EU antitrust, merger control, foreign investment control, trade, state aid and procurement. Our commentary posts will focus on the key questions being raised by clients and provide some insights on the interplay between the different existing regimes and the Commission’s proposed measures. We will also highlight any potential added complexity and risks for M&A transactions as well as broader consequences, such as any countervailing measures by countries outside of the EU, should the measures in the White Paper ultimately be adopted.

The Commission invited comments on the proposals and questions raised in the White Paper until Wednesday 23 September 2020, and Linklaters has responded to this consultation.

The European Commission canvasses new broad powers to neutralise market distortions from foreign subsidies

Our client alert summarises the European Commission's White Paper on levelling the playing field as regards foreign subsidies




Read our summary >

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Cargo ship in port

The EU Foreign Subsidies White Paper Series: Implications on trade

The Commission’s White Paper addresses foreign “subsidies” along the lines of settled trade rules, and yet includes novel elements. Are these novelties in line with trade law, and how are EU’s trading partners expected to react? Could this initiative backfire on EU companies?

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spider web

The EU Foreign Subsidies White Paper Series: Implications for foreign investment control

As Member States across the EU continue to sharpen or introduce regimes aimed at controlling foreign investment, the European Commission’s White Paper proposes, among other elements, a mechanism to screen foreign-subsidised acquisitions. In this blog post, we explore the potential interplay between European foreign investment controls and the newly proposed measures, particularly the increasing complexity for M&A-transactions.

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The EU Foreign Subsidies White Paper Series: Implications for antitrust

The EC’s White Paper on Foreign Subsidies comes amidst an ongoing ambitious revision of the EC’s own antitrust rulebook on market definition, vertical restraints, as well as the exploration of new regulatory solutions to address structural competition issues. Will the proposals put forward in the White Paper complement the EC’s antitrust enforcement toolkit, or do they risk becoming an imperfect substitute?

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different marbles

The EU Foreign Subsidies White Paper Series: Implications for State aid

The Commission’s White Paper seeks to level the playing field as regards foreign subsidies "just as we do with national subsidies". However, the proposed regime is far from being State aid’s extra-territorial sibling. In this post, we explore its similarities and differences with the EU's State aid rules and highlight the challenges that the new member of the EU enforcement family might face, including in relation to effectiveness, neutrality and legal certainty.

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The EU Foreign Subsidies White Paper Series: Implications for public procurement

The Commission’s White Paper on levelling the playing field as regards foreign subsidies looks at neutralising the potentially distortive effects of foreign subsidies on EU procurement markets. In this blog post, we explore the tension between ensuring best value for money for contracting authorities and maintaining a genuine level playing field for bidders.

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The EU Foreign Subsidies White Paper Series: Implications for merger control

In proposing a new approval process for qualifying acquisitions facilitated by foreign subsidies, the European Commission (“EC”) may create yet another hurdle for (foreign) acquisitions in the EU, next to a merger control and foreign direct investment review. We would urge caution as overreach may result in even greater distortion of the level playing field – which the White Paper sets out to protect.

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The Commission’s consultation on its Foreign Subsidies White Paper closed on 23 September 2020. Our response sets out our views on the proposals, based on our experience advising clients on similar tools under existing competition and foreign investment control rules.




Read our response to the consultation >
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