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Review by the Court of Justice
In accordance with Article 261 TFEU, the Court of Justice of the European Union shall have unlimited jurisdiction to review decisions by which the Commission has imposed fines or periodic penalty payments. It may cancel, reduce or increase the fine or periodic penalty payment imposed.
Guidelines
1. The Commission shall publish, at the latest on 12 January 2026, and shall regularly update thereafter, guidelines regarding: (a) the application of the criteria for determining the existence of a distortion according to Article 4(1); (b) the application of the balancing test in accordance with Article 6; (c) the application of its power to request the prior notification of any concentration according to Article 21(5) or foreign financial contributions received by an economic operator in a public procurement procedure according to Article 29(8), and (d) the assessment of a distortion in a public procurement procedure according to Article 27. 2. Before issuing the guidelines referred to in paragraph 1, the Commission shall conduct appropriate consultations with stakeholders and Member States. The guidelines shall be built on experience gained in the course of implementing and enforcing this Regulation.
Implementing acts
1. The Commission is empowered to adopt implementing acts concerning: (a) the form, content and procedural details of notifications of concentrations pursuant to Article 21, including a possible simplified procedure, taking utmost account of the goal of limiting administrative burden for notifying parties pursuant to Article 21 of this Regulation and Article 4 of Regulation (EC) No 139/2004; (b) the form, content and procedural details of notifications of foreign financial contributions and declaration of no foreign financial contribution in public procurement procedures pursuant to Article 29, including a possible simplified procedure; (c) procedural details for oral statements pursuant to Article 13(7), Article 14(2), point (c) and Article 15; (d) details of the disclosure pursuant to Article 42 and professional secrecy pursuant to Article 43; (e) the form, content and procedural details of transparency requirements; (f) detailed rules on the calculation of time limits; (g) the procedural details and time limits for proposing commitments under Articles 25 and 31; (h) detailed rules on the procedural steps referred to in Articles 29to 32 concerning investigations regarding public procurement procedures. 2. Implementing acts referred to in paragraph 1 shall be adopted in accordance with the advisory procedure referred to in Article 48(2). 3. Before the adoption of any measures pursuant to paragraph 1, the Commission shall make public a draft thereof and seek comments within the time limit. That time limit shall be set by the Commission and be no less than four weeks. 4. The first implementing acts referred to in paragraph 1 shall be adopted by 12 July 2023.
Committee procedure
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.
Delegated acts
1. The Commission is empowered to adopt a delegated act in accordance with Article 50 for the purposes of amending, where necessary, the threshold for notifications of concentrations as set out in Article 20(3), point (a), by increasing the threshold by up to 20 % or decreasing the threshold by up to 20 %, after having: (a) assessed that threshold in the light of its experience gained in the course of implementing and enforcing this Regulation; and (b) established the necessity of amending that threshold in order to: (i) ensure that the notification procedures set out in Chapter 3 enable the accurate identification of foreign subsidies distorting the internal market; (ii) ensure a reasonable administrative burden on the Commission and the undertakings concerned; and (iii) enhance the effectiveness of the application of this Regulation. 2. For the purposes of evaluating the necessity of amending the threshold for notifications, pursuant to paragraph 1, the Commission shall conduct its assessment, covering a defined period of time which cannot be shorter than two years, in particular on the basis of the following objective criteria: (a) the proportion of notifications pursuant to Article 21(1) which resulted either in the Commission closing the preliminary review pursuant to Article 10(4) or in the Commission adopting a no objection decision pursuant to Article 25(3), point (b); (b) the proportion of notifications pursuant to Article 21(1) which resulted either in the Commission adopting a decision prohibiting a concentration pursuant to Article 25(3), point (c), or a decision with commitments pursuant to Article 25(3), point (a); (c) the proportion of notifications pursuant to Article 21(5) which resulted in the Commission adopting either a decision prohibiting a concentration pursuant to Article 25(3), point (c), or a decision with commitments pursuant to Article 25(3), point (a); (d) the proportion of ex officio reviews pursuant to Article 9 in the context of concentrations not notifiable within the meaning of Article 20 which resulted either in a decision with redressive measures pursuant to Article 11(2) or in a decision with commitments pursuant to Article 11(3); (e) the comparison between the threshold set out in Article 20(3), point (a), and the average aggregate turnover, above that threshold, in the cases which resulted in either a decision prohibiting a concentration pursuant to Article 25(3), point (c), or a decision with commitments pursuant to Article 25(3), point (a); (f) the number of notifications pursuant to Article 21(1) and the evolution of that number. 3. In order to raise the thresholds in Article 20(3), point (a), the assessment referred to in paragraph 2 of this Article shall demonstrate that: (a) a large part of decisions prohibiting a concentration pursuant to Article 25(3), point (c), or decisions with commitments pursuant to Article 25(3), point (a), concerned cases where the aggregate turnover, above the threshold referred to in Article 20(3), point (a), was substantially higher than that threshold; or (b) a large part of the notifications pursuant to Article 21(1) resulted either in the Commission closing the preliminary review pursuant to Article 10(4) or in the Commission adopting a no objection decision pursuant to Article 25(3), point (b). 4. In order to decrease the thresholds in Article 20(3), point (a), the assessment referred in paragraph 2 of this Article shall demonstrate that: (a) a large part of notifications pursuant to Article 21(5) resulted in the Commission adopting either a decision prohibiting a concentration pursuant to Article 25(3), point (c), or a decision with commitments pursuant to Article 25(3), point (a); or (b) a large part of ex officio reviews of foreign subsidies in the context of concentrations which were not notifiable concentrations within the meaning of Article 20 resulted in the Commission adopting either a decision with redressive measures pursuant to Article 11(2) or a decision with commitments pursuant to Article 11(3). 5. The Commission is empowered to adopt a delegated act in accordance with Article 50 for the purposes of amending, where necessary, the thresholds for notifications as set out in Articles 28(1), point (a), and 28(2) for public procurement by increasing by up to 20 % or decreasing by up to 20 %, after having: (a) assessed those thresholds in the light of its experience gained in the course of implementing and enforcing this Regulation; and (b) established the necessity of amending those thresholds in order to: (i) ensure that the notification procedures set out in Chapter 4 enable the accurate identification of foreign subsidies distorting the internal market; (ii) ensure a reasonable administrative burden on the Commission and the economic operators concerned; and (iii) enhance the effectiveness of the application of this Regulation. 6. For the purposes of evaluating the necessity of amending the threshold for notifications, pursuant to paragraph 5, the Commission shall conduct its assessment, covering a defined period of time which cannot be shorter than two years, in particular on the basis of the following objective criteria: (a) the proportion of notifications pursuant to Article 29(1) which resulted either in the Commission closing the preliminary review pursuant to Article 10(4) or in the Commission adopting a no objection decision pursuant to Article 31(3); (b) the proportion of notifications pursuant to Article 29(1) which resulted either in the Commission adopting a decision prohibiting the award of the contract pursuant to Article 31(2) or a decision with commitments pursuant to Article 31(1); (c) the proportion of notifications pursuant to Article 29(8) which resulted in the Commission adopting either a decision prohibiting the award of the contract pursuant to Article 31(2) or a decision with commitments pursuant to Article 31(1); (d) the number of decisions with redressive measures pursuant to Article 11(2) and of decisions with commitments pursuant to Article 11(3), following an ex officio review pursuant to Article 9 in the context of a foreign financial contribution in a public procurement procedure which was not notifiable within the meaning of Article 28(1) or which fell within the scope of Article 30(4), in relation to the overall number of such ex officio reviews; (e) the comparison between the respective thresholds set out in Articles 28(1), point (a), and 28(2) and the average estimated value of the contracts or the average value of the lots, above the respective threshold, in the cases which resulted with either a decision prohibiting the award of the contract pursuant to Articles 31(2) or a decision with commitments pursuant to Article 31(1); (f) the number of notifications pursuant to Article 29(1) and the evolution of that number. 7. In order to increase the thresholds for notifications, the assessment referred to in paragraph 6 shall demonstrate that: (a) a large part of the decisions prohibiting the award of the contract pursuant to Article 31(2) and decisions with commitments pursuant to Article 31(1) concerned cases where the estimated value of the contracts, above the threshold referred to in Article 28(1), point (a), or where the value of the lots applied for, above the threshold referred to in Article 28(2), was substantially higher than the respective thresholds set out in Articles 28(1), point (a), and 28(2); or (b) a large part of the notifications pursuant to Article 29(1) resulted either in the Commission closing the preliminary review pursuant to Article 10(4) or in the Commission adopting a no objection decision pursuant to Article 31(3). 8. In order to decrease the thresholds, the assessment referred to in paragraph 6 shall demonstrate that: (a) a large part of the notifications pursuant to Article 29(8) resulted in the Commission adopting either a decision with commitments pursuant to Article 31(1) or a decision prohibiting the award of the contract pursuant to Article 31(2); or (b) a large part of the ex officio reviews of foreign subsidies in the context of foreign financial contributions in a public procurement procedure which were not notifiable within the meaning of Article 28(1) or fell within the scope of Article 30(4) resulted in the Commission adopting either a decision with redressive measures pursuant to Article 11(2) or a decision with commitments pursuant to Article 11(3). 9. The Commission is empowered to adopt delegated acts in accordance with Article 50 for the purposes of reducing the timelines for preliminary review and in-depth investigations as set out in Article 25(2) and (4) for notified concentrations and in Article 30(2), (5) and (6) for notified financial contributions in public procurement procedures. The Commission may adopt such delegated acts to reduce the timelines in Article 25(2) and (4) and Article 30(2), (5) and (6) where its practice in the application of this Regulation demonstrates that the Commission’s assessment can be performed within a shorter period of time.
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Articles 49(1) and (5) shall be conferred on the Commission for a period of five years from 12 January 2025. 3. The power to adopt delegated acts referred to in Article 49(9) shall be conferred on the Commission for a period of five years from 12 January 2025. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period. 4. The delegation of power referred to in Article 49(1), (5) and (9) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 5. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. 6. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 7. A delegated act adopted pursuant to Article 49(1) (5) and (9) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Separate delegated acts for different delegated powers
The Commission shall adopt a separate delegated act in respect of each power delegated to it pursuant to this Regulation.
Reporting and review
1. The Commission shall present an annual report on the application and implementation of this Regulation to the European Parliament and to the Council. 2. By 13 July 2026 and every three years thereafter, the Commission shall review its practice of implementing and enforcing this Regulation, in particular with regard to the application of Articles 4, 5, 6 and 9, and the notification thresholds set out in Article 20(3), Article 28(1) and (2), and present a report to the European Parliament and the Council, accompanied, where the Commission considers it appropriate, by relevant legislative proposals. In the context of its review, the Commission shall report on developments in international relations regarding third countries’ subsidy control systems. 3. Where the Commission considers it appropriate to combine the report with relevant legislative proposals, such proposals may include: (a) amending the thresholds for notifications as set out in Articles 20 and 28; (b) exempting certain categories of undertakings concerned from the obligation to notify pursuant to Articles 21 and 29, especially where the practice of the Commission enables the identification of economic activities where foreign subsidies are unlikely to distort the internal market; (c) establishing specific thresholds for notifications for certain economic sectors or differentiated thresholds for different types of public procurement contracts, especially where the practice of the Commission enables the identification of economic activities where foreign subsidies are more likely to distort the internal market, including as regards strategic sectors and critical infrastructure; (d) amending the timelines for review and in-depth investigations as set out in Articles 25 and 30; (e) abrogating this Regulation, if the Commission considers that multilateral rules to address foreign subsidies distorting the internal market have rendered this Regulation fully redundant.
Transitional provisions
1. This Regulation shall apply to foreign subsidies granted in the five years prior to 12 July 2023 where such foreign subsidies distort the internal market after 12 July 2023. 2. By way of derogation to paragraph 1, this Regulation shall apply to foreign financial contributions granted in the three years prior to 12 July 2023 where such foreign financial contributions were granted to an undertaking notifying a concentration or notifying financial contributions in the context of a public procurement procedure pursuant to this Regulation. 3. This Regulation shall not apply to concentrations for which the agreement was concluded, the public bid was announced, or a controlling interest was acquired before 12 July 2023. 4. This Regulation shall not apply to public procurement contracts that have been awarded or procedures initiated before 12 July 2023.
Entry into force and date of application
1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union . 2. It shall apply from 12 July 2023. 3. By way of derogation from paragraph 2 of this Article, Articles 47 and 48 shall apply from 11 January 2023 and Article 14(5), (6) and (7) shall apply from 12 January 2024. 4. By way of derogation from paragraph 2 of this Article, Articles 21 and 29 shall apply from 12 October 2023.
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.