This Chapter offers a practitioner’s perspective on the application of the Foreign Subsidies Regulation to concentrations, reflecting on early trends, practical experiences and challenges faced by companies and their legal advisors. It starts with the observation that after two years on, there is a huge discrepancy between the case load anticipated by the Commission and the actual numbers. After some introductory reflections on this phenomenon, including its possible causes and implications, the Chapter focusses on the practical aspects encountered in the various stages or “key moments” of a typical FSR case from a legal practitioner’s perspective: From assessing the FSR filing thresholds over preparing the FSR filing, assisting undertakings in the FSR data collection, and navigating them through the (pre-)notification and FSR review process before DG COMP. It contrasts FSR procedures with EU Merger Regulation practice, identifying not only several parallels but also important differences, such as the lack of a simplified procedure, the absence of clearance decisions at the end of phase I, and the possibility for the Commission to decide based on the facts available. The Chapter critically assesses the burdensome data collection requirements, including the broad scope of foreign financial contributions (FFCs) to be detected across global group entities. Drawing on legal practice, the Chapter reflects common industry frustrations and argues for reform. Suggested improvements include the introduction of a simplified procedure, clearer guidance on the Commission’s call-in powers, and a more consistent approach regarding the exceptions from FFC reporting requirements, e.g. regarding tax measures and financial services. This contribution provides a grounded analysis of how the FSR’s concentration tool operates in practice and outlines practical reforms to streamline compliance, increase legal certainty and reduce red tape.

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The FSR in Concentrations: A View from Legal Practice

  • Harald Weiß

摘要

This Chapter offers a practitioner’s perspective on the application of the Foreign Subsidies Regulation to concentrations, reflecting on early trends, practical experiences and challenges faced by companies and their legal advisors. It starts with the observation that after two years on, there is a huge discrepancy between the case load anticipated by the Commission and the actual numbers. After some introductory reflections on this phenomenon, including its possible causes and implications, the Chapter focusses on the practical aspects encountered in the various stages or “key moments” of a typical FSR case from a legal practitioner’s perspective: From assessing the FSR filing thresholds over preparing the FSR filing, assisting undertakings in the FSR data collection, and navigating them through the (pre-)notification and FSR review process before DG COMP. It contrasts FSR procedures with EU Merger Regulation practice, identifying not only several parallels but also important differences, such as the lack of a simplified procedure, the absence of clearance decisions at the end of phase I, and the possibility for the Commission to decide based on the facts available. The Chapter critically assesses the burdensome data collection requirements, including the broad scope of foreign financial contributions (FFCs) to be detected across global group entities. Drawing on legal practice, the Chapter reflects common industry frustrations and argues for reform. Suggested improvements include the introduction of a simplified procedure, clearer guidance on the Commission’s call-in powers, and a more consistent approach regarding the exceptions from FFC reporting requirements, e.g. regarding tax measures and financial services. This contribution provides a grounded analysis of how the FSR’s concentration tool operates in practice and outlines practical reforms to streamline compliance, increase legal certainty and reduce red tape.