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Ex officio review of foreign subsidies
1. The Commission may on its own initiative examine information from any source, including Member States, a natural or legal person or an association, regarding alleged foreign subsidies distorting the internal market. 2. Ex officio reviews into public procurements shall be limited to awarded contracts. Such reviews shall not result in the cancellation of the decision awarding a contract or in a termination of a contract.
Preliminary review
1. 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: (a) request information in accordance with Article 13; and (b) conduct inspections within and outside the Union in accordance with Article 14 or Article 15. 2. Where a Member State has informed the Commission that a relevant national procedure is envisaged or has been opened, the Commission shall inform that Member State of the start of the preliminary review. In particular, the Commission shall inform Member States that have notified the Commission about a national procedure pursuant to Regulation (EU) 2019/452 of the start of the preliminary review. Where the preliminary review is initiated in relation to a public procurement procedure, the Commission shall also inform the contracting authority or contracting entity concerned. 3. 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: (a) 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; (b) inform the undertaking under investigation; (c) 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 (d) 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. 4. Where the Commission, in the course of a preliminary review, concludes that there are insufficient indications to initiate an in-depth investigation, either because there is no foreign subsidy or because there are insufficient indications of an actual or potential distortion in the internal market, it shall close the preliminary review, inform the undertaking under investigation and Member States that were informed pursuant to paragraph 2, as well as the contracting authority or contracting entity concerned where the preliminary review was initiated in relation to a public procurement procedure.
In-depth investigation
1. During the in-depth investigation, the Commission shall further assess the foreign subsidy identified in the decision to initiate the in-depth investigation and seek all the information it considers necessary in accordance with Articles 13, 14 and 15. 2. Where the Commission finds, pursuant to Articles 4 to 6, that a foreign subsidy distorts the internal market, it may adopt an implementing act in the form of a decision imposing redressive measures (‘decision with redressive measures’). That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 48(2). 3. Where the Commission, pursuant to Articles 4 to 6, finds that a foreign subsidy distorts the internal market and the undertaking under investigation offers commitments which the Commission deems appropriate and sufficient to fully and effectively remedy the distortion, it may adopt an implementing act in the form of a decision in order to make those commitments binding on the undertaking (‘decision with commitments’). A decision accepting the repayment of a foreign subsidy in accordance with Article 7(6) shall be considered a decision with commitments. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 48(2). 4. The Commission shall adopt an implementing act in the form of a decision to raise no objection (‘no objection decision’) where it finds that: (a) the preliminary assessment as set out in its decision to initiate the in-depth investigation is not confirmed; or (b) 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). 5. The Commission shall, as far as possible, endeavour to adopt a decision within a period of 18 months from the opening of the in-depth investigation.
Interim measures
1. 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: (a) there are sufficient indications that a financial contribution constitutes a foreign subsidy and distorts the internal market; and (b) 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). 2. The interim measures may, in particular, but not exclusively, consist of the measures mentioned under Article 7(4), points (a), (c), and (d). No interim measures may be taken with regard to public procurement procedures. 3. The interim measures shall apply either for a specific period of time, which may be renewed in so far that is necessary and appropriate, or until the final decision is taken.
Requests for information
1. To carry out the duties assigned to it by this Regulation, the Commission may require information in line with this Article. 2. The Commission may require an undertaking under investigation to provide all necessary information, including information regarding its tender in a public procurement procedure. 3. The Commission may also require such information from other undertakings or associations of undertakings, including information regarding their tenders in public procurement procedures, taking due account of the principle of proportionality. 4. A request for information pursuant to paragraph 2 or 3 shall: (a) 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; (b) 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; (c) 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. 5. At the request of the Commission, Member States shall provide it with all necessary information to carry out the duties assigned to it by this Regulation. Paragraph 4, point (a) shall apply mutatis mutandis . 6. The Commission may also request a third country to provide all necessary information. Paragraph 4, points (a) and (c) shall apply mutatis mutandis . 7. 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: (a) inform the Member State in whose territory the interview is to take place; or (b) obtain the agreement of the third country in whose territory the interview is to take place.
Inspections within the Union
1. In order to carry out the duties assigned to it by this Regulation, the Commission may conduct the necessary inspections of undertakings and associations of undertakings. 2. Where the Commission undertakes such an inspection, the officials authorised by the Commission to conduct an inspection shall be empowered to: (a) enter any premises, land and means of transport of the undertaking or association of undertakings; (b) 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; (c) 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; (d) seal any business premises and books or records for the period of time of, and to the extent necessary for, the inspection. 3. 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: (a) specifying the subject matter and purpose of the inspection; (b) 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; (c) referring to the possibility to impose fines or periodic penalty payments provided for in Article 17; and (d) stating the right to have the decision reviewed by the Court of Justice pursuant to Article 263 TFEU. 4. In good time before the inspection, the Commission shall give notice of the inspection to the Member State in whose territory it is to be conducted and of the date on which it is to begin. 5. Officials and other persons authorised or appointed by the Member State in whose territory the inspection is to be conducted shall, at the request of the Member State or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission. To that end, they shall enjoy the powers specified in paragraph 2. 6. Where officials or other accompanying persons authorised by the Commission find that an undertaking or association of undertakings opposes an inspection within the meaning of this Article, the Member State in the territory of which the inspection takes place shall provide them with the necessary assistance and shall request, where appropriate, the assistance of the police or of an equivalent enforcement authority so as to enable them to conduct their inspection. If the assistance provided for in this paragraph requires authorisation from a judicial authority according to national rules, such authorisation shall be applied for. Such authorisation may also be applied for as a precautionary measure. 7. Upon request of the Commission, a Member State shall in its own territory carry out any inspection or other fact-finding measure under its national law in order to establish whether there is a foreign subsidy distorting the internal market.
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 .
Non-cooperation
1. 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: (a) provides incomplete, incorrect or misleading information in response to a request for information under Article 13; (b) fails to provide the information requested within the time limit prescribed by the Commission; (c) refuses to submit to the Commission’s inspection within or outside the Union ordered under Article 14 or Article 15; or (d) otherwise impedes the preliminary review or the in-depth investigation. 2. Where an undertaking or association of undertakings, a Member State or the third country has supplied incorrect or misleading information to the Commission, that information shall be disregarded. 3. Where an undertaking, including a public undertaking which is directly or indirectly controlled by the State, fails to provide the necessary information to determine whether a financial contribution confers a benefit on it, that undertaking may be deemed to have received such benefit. 4. When applying facts available, the result of the procedure may be less favourable to the undertaking than if it had cooperated.
Fines and periodic penalty payments
1. The Commission may, by decision, impose fines or periodic penalty payments where an undertaking or an association of undertakings, intentionally or negligently: (a) 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; (b) produces the required books or other records related to the business in incomplete form during inspections under Article 14; (c) in response to a question asked in accordance with Article 14(2), point (c): (i) gives an incorrect or misleading answer; (ii) fails to rectify within a time-limit set by the Commission an incorrect, incomplete or misleading answer given by a member of staff; or (iii) 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); (d) refuses to submit to inspections ordered under Article 14 or has broken seals affixed in accordance with Article 14(2), point (d); or (e) 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). 2. Fines imposed under paragraph 1 shall not exceed 1 % of the aggregate turnover of the undertaking or association of undertakings concerned in the preceding financial year. 3. Periodic penalty payments imposed under paragraph 1 shall not exceed 5 % of the average daily aggregate turnover of the undertaking or association of undertakings concerned in the preceding financial year for each working day of delay, calculated from the date established in the decision, until it submits complete and correct information as required by the Commission, or until it submits to an inspection. 4. Before adopting any decision in accordance with paragraph 1, point (a) the Commission shall set a final time limit of two weeks to receive the missing information from the undertaking or from the association of undertakings. 5. 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: (a) fines not exceeding 10 % of the aggregate turnover of the undertaking concerned in the preceding financial year; or (b) 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. 6. When setting the amount of the fine or periodic penalty payment, the Commission shall have regard to the nature, gravity and duration of the infringement, taking due account of the principles of proportionality and appropriateness. 7. Where the undertaking or association of undertakings concerned has satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may reduce the definitive amount of the periodic penalty payment compared to that under the original decision imposing periodic penalty payments.
Revocation
1. 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: (a) the undertaking to which the initial decision was addressed acts contrary to its commitments or the redressive measures imposed; (b) the initial decision was based on incomplete, incorrect or misleading information; (c) 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). 2. The revocation and adoption of a new decision by the Commission under paragraph 1 shall not affect the decision of the contracting authority or contracting entity awarding a contract. They shall also not affect a contract already concluded following such an award decision.
Articles on this page are reproduced verbatim from official open data. See the attribution line.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.