What is the Information Needed for the Commission to Conduct its Substantive Assessment Under the New EU Foreign Subsidies Regulation?

The new EU Foreign Subsidies Regulation (“FSR”) adopted at the end of 2022 is not yet applicable but it has already been subject to extensive criticism due to its draft implementing regulation, especially in the context of large concentrations for which clearance must be obtained from the Commission where certain thresholds are exceeded. This paper takes a closer look at the distortion of the internal market by foreign subsidies that the FSR intends to address. It will then submit that, in the context of notifiable concentrations, the relevant foreign subsidies for the substantive assessment under the FSR are limited to those that have a link to the concentration, because they are granted to undertakings that use them to fully or partially finance the concentration. The paper will then conclude that a focus on likely concerns will allow the Commission to significantly narrow the reporting requirements required under the notification form.

By Christian Ahlborn & Carole Maczkovics^[1]

After less than two years of debate, the European Union (“EU”) has adopted the Regulation on foreign subsidies distorting the internal market (“FSR”).^[2] This brand-new regime constitutes an important policy instrument intended to capture distortions of the EU internal market caused by foreign subsidies. The FSR is based on the consideration that whereas companies active in the EU are subject to State aid rules when they are granted support from a public entity of an EU Me