Relationship between procedures
1. A financial contribution notified in the context of a concentration under Article 21 or in the context of a public procurement under Article 29 may be relevant to and assessed under this Regulation in relation to another economic activity.
2. A financial contribution assessed in the context of an ex officio procedure in relation to a specific economic activity under Article 10 or Article 11 may be relevant to and assessed under this Regulation in relation to another economic activity.
Communication of information
1. Where a Member State considers that a foreign subsidy may exist and may distort the internal market, it shall transfer information thereon to the Commission. The Commission may on the basis of that information decide to start a preliminary review pursuant to Article 10, or request a notification pursuant to Article 21(5) or Article 29(8).
2. A natural or legal person or association may communicate to the Commission any information it may have about foreign subsidies that may distort the internal market. The Commission may on the basis of that information decide to start a preliminary review pursuant to Article 10, or request a notification pursuant to Article 21(5) or Article 29(8).
3. The Commission shall make accessible to Member States and the contracting authorities or contracting entities concerned, on a dedicated electronic database, the non-confidential versions of all decisions adopted under this Regulation.
Market investigation
1. Where the information available to the Commission substantiates a reasonable suspicion that foreign subsidies in a particular sector, for a particular type of economic activity or based on a particular subsidy instrument may distort the internal market, the Commission may conduct a market investigation into the particular sector, the particular type of economic activity or into the use of the subsidy instrument concerned. In the course of that market investigation, the Commission may require the undertakings or associations of undertakings concerned to supply the necessary information and may carry out the necessary inspections. The Commission may also request Member States or the third country concerned to supply information.
2. The Commission shall, where relevant, publish a report on the results of its market investigation into particular sectors, particular types of economic activity or particular subsidy instruments and seek comments.
3. The Commission may use the information obtained from such market investigations in the framework of procedures under this Regulation.
4. Articles 13, 14, 15 and 17 shall apply to market investigations.
Third-country dialogue
1. Where, following a market investigation pursuant to Article 36, the Commission suspects the existence of repeated foreign subsidies distorting the internal market, or where several enforcement actions under this Regulation identify foreign subsidies distorting the internal market granted by the same third country, the Commission may engage in a dialogue with the third country concerned, to explore options aimed at obtaining the cessation or modification of such subsidies with a view to eliminating their distortive effects on the internal market. The Commission shall inform the European Parliament and the Council of any relevant developments.
2. That third-country dialogue shall not prevent the Commission from taking action under this Regulation. Individual measures adopted pursuant to this Regulation shall not be addressed within that dialogue.
Limitation periods
1. The powers of the Commission under Articles 10 and 11 shall be subject to a limitation period of 10 years, starting on the day on which a foreign subsidy is granted to an undertaking. Any action taken by the Commission under Article 10, 13, 14 or 15 with respect to a foreign subsidy shall interrupt the limitation period. After each interruption, the limitation period of 10 years shall start to run afresh.
2. The powers of the Commission to impose fines or periodic penalty payments under Articles 17, 26 and 33 shall be subject to a limitation period of three years, starting on the day on which the infringement referred to in Article 17, 26 or 33 took place. In the case of continuing or repeated infringements, the limitation period shall start on the day on which the infringement ceases. Any action taken by the Commission with respect to an infringement referred to in Articles 17, 26 or 33 shall interrupt the limitation period for the imposition of fines or periodic penalty payments. After each interruption, the limitation period of three years shall start to run afresh.
3. The powers of the Commission to enforce decisions imposing fines or periodic penalty payments under Articles 17, 26 and 33 shall be subject to a limitation period of five years, starting on the day on which the Commission decision imposing fines or periodic penalty payments is taken. Any action taken by the Commission, or by a Member State acting upon request of the Commission, intended to enforce payment of the fine or periodic penalty payment shall interrupt that limitation period. After each interruption, the limitation period of five years shall start to run afresh.
4. 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:
(a)
taken a decision pursuant to Article 10 or 11 in the instances set out in paragraph 1 of this Article; or
(b)
imposed a fine or a periodic penalty payment in the situation set out in paragraph 2 of this Article.
5. The limitation period shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union.
Anti-circumvention
1. An undertaking shall not arrange financial operations or contracts to circumvent the notification requirements laid down in Article 21(1) and (5) and Article 29(1), (5) and (8).
2. Where the Commission suspects that an undertaking has engaged or is engaging in a practice referred to in paragraph 1, it may require that undertaking to provide any information that the Commission deems necessary to determine whether the undertaking has engaged in or is engaging in the practices referred to in paragraph 1, and may initiate a review pursuant to Article 21(4), or Article 30(4).
Publication of decisions
1. The Commission shall make public a summary notice of the decisions adopted pursuant to Article 10(3), point (a), allowing any natural or legal person, Member States or the third country that granted the foreign subsidy, to express their views.
2. The Commission shall publish the decisions adopted pursuant to Article 11(2), (3) and (4), Article 25(3) and (6), and Article 31(1), (2) and (3) in the Official Journal of the European Union .
3. When making public summary notices and decisions, the Commission shall take due account of the legitimate interests of undertakings in the protection of their business secrets and other confidential information.
Addressees of decisions
1. The Commission shall notify a decision addressed to an undertaking or to an association of undertakings without delay and shall give that undertaking or association of undertakings the opportunity to indicate to the Commission which information in the decision it considers to be confidential.
2. The Commission shall inform the contracting authority or contracting entity concerned about a decision adopted pursuant to Article 31(1) and (3) addressed to an economic operator participating in a public procurement procedure.
3. Decisions adopted pursuant to Article 29(4) and Article 31(2) shall be addressed to the contracting authority or contracting entity concerned. The Commission shall provide the economic operator to which the award of the contract is prohibited with a copy of that decision.
Disclosure and rights of defence
1. The Commission shall, before adopting a decision pursuant to Articles 11, 12, 17, 18, 25(3), 26, 31 or 33 give the undertaking under investigation the opportunity to submit observations on the grounds on which the Commission intends to adopt its decision.
2. By way of derogation from paragraph 1, a decision pursuant to Article 12 may be taken provisionally, without the undertaking under investigation being given the opportunity to submit its observations beforehand, provided that the Commission gives it that opportunity as soon as possible after having taken its decision.
3. The Commission shall base its decision only on grounds on which the undertakings concerned have been given the opportunity to submit their observations.
4. In order to be able to exercise its right pursuant to paragraph 1, the undertaking under investigation shall be entitled to have access to the file of the Commission. The right of access to the file shall not extend to confidential information or internal documents of the Commission or the Member States or, in particular, to correspondence between the Commission and the Member States.
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.
Professional secrecy and confidentiality
1. Information acquired under this Regulation shall be used only for the purposes for which it was acquired, unless the provider of the information agrees otherwise.
2. Member States and the Commission, their officials and other persons working under their supervision shall ensure the protection of confidential information acquired in application of this Regulation in accordance with the relevant applicable rules. To that end, they shall not disclose information covered by the obligation of professional secrecy that they have acquired pursuant to this Regulation.
3. Paragraphs 1 and 2 shall not prevent the publication of statistics and reports which do not contain information allowing the identification of specific undertakings or associations of undertakings.
4. The disclosure of any information communicated under this Regulation shall not prejudice the essential security interests of Member States.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
