Strategic mapping of the Union’s semiconductor sector
1. The Commission shall carry out a strategic mapping of the Union’s semiconductor sector in cooperation with the European Semiconductor Board. The strategic mapping shall provide an analysis of the Union’s strengths and weaknesses in the global semiconductor sector and identify factors such as:
(a)
key products and critical infrastructures in the internal market that are depending on the supply of semiconductors;
(b)
main user industries in the Union and their current and expected needs and dependencies, including an analysis of the possible risks to security of supply also linked to insufficient investment;
(c)
key segments of the Union’s semiconductor supply chain, including design, software for design, materials, manufacturing equipment, semiconductor manufacturing and outsourced back-end;
(d)
the technological characteristics, the dependencies on third-country technology and providers, and bottlenecks of the Union’s semiconductor sector including access to inputs;
(e)
current and expected needs for skills and effective access to qualified workforce in the semiconductor sector;
(f)
where appropriate, the potential impact of crisis measures referred to in Articles 25, 26, and 27 on the semiconductor sector.
2. The Commission shall inform the European Semiconductor Board of the aggregate results of the strategic mapping on a regular basis.
3. The Commission shall, on the basis of the outcome of the strategic mapping carried out pursuant to paragraph 1 and after consulting the European Semiconductor Board, develop a list of early warning indicators. The Commission, after consulting the European Semiconductor Board, shall review the list of early warning indicators on a regular basis, at least every two years.
4. The Commission shall, after consulting the European Semiconductor Board, develop a framework and methodology for a strategic mapping of the semiconductor sector. The Commission shall update the framework and the methodology where necessary.
5. The strategic mapping shall be based, inter alia, on publicly and commercially available data and relevant non-confidential information from undertakings, the result of similar analysis performed, including in the context of Union law on raw materials and renewable energy, as well as the evaluations carried out pursuant to Article 40(1). Where this is not enough to develop the strategic mapping pursuant to paragraph 1 of this Article, the Commission may issue voluntary information requests to actors on the semiconductor value chain in the Union, after consulting the European Semiconductor Board. The Commission shall use the standardised and secure means for the collection and processing of information, referred to in Article 32(4), for the purposes of such information requests.
6. Any information obtained pursuant to this Article shall be treated in compliance with the confidentiality obligations set out in Article 32.
7. The Commission shall, after consulting the European Semiconductor Board, adopt guidance for the provision of information pursuant to paragraph 5. The Commission shall update that guidance when necessary.
Monitoring and anticipation
1. The Commission, in consultation with the European Semiconductor Board, shall carry out regular monitoring of the semiconductor value chain with a view to identifying factors that may disrupt, compromise or negatively affect the supply of semiconductors or trade in semiconductors. For the purposes of this Regulation, the monitoring shall consist of the following activities:
(a)
monitoring of early warning indicators identified pursuant to Article 19;
(b)
monitoring by Member States of the integrity of activities carried out by the key market actors identified pursuant to Article 21 and reporting by Member States on major events that may hinder the regular operations of such activities;
(c)
identifying best practices for preventive risk mitigation and increased transparency in the semiconductor sector.
The Commission, after consulting the European Semiconductor Board, shall define the frequency of the monitoring on the basis of the needs of the semiconductor sector.
The Commission shall coordinate the activities related to the monitoring of the semiconductor sector, on the basis of information collected pursuant to Article 19 or from other sources, such as international partners.
2. The Commission shall pay particular attention to SMEs to minimise administrative burden resulting from the information collection.
3. The Commission shall invite key market actors, a representative set of users of semiconductors from the critical sectors, representative organisations of the semiconductor value chain and other relevant stakeholders to provide information, on a voluntary basis, for the purpose of carrying out monitoring activities in accordance with paragraph 1, first subparagraph, point (a).
4. For the purposes of paragraph 1, first subparagraph, point (b), Member States may request information, on a voluntary basis, from key market actors where necessary and proportionate.
5. For the purposes of paragraph 3 national competent authorities shall establish and maintain a list of contacts of all relevant undertakings operating along the semiconductor supply chain established in their territory. That list shall be transmitted to the Commission. The Commission shall provide for a standardised format for the list of contacts with a view to ensuring interoperability.
6. Any acquired information pursuant to this Article shall be handled in accordance with Article 32.
7. On the basis of the information collected through the activities under paragraph 1, the Commission shall provide a report of the aggregated findings to the European Semiconductor Board in the form of regular updates. The European Semiconductor Board shall meet to assess the results of the monitoring. The Commission shall invite representative organisations of the semiconductor sector to such meetings. Where relevant, the Commission may invite key market actors, users of semiconductors from the critical sectors, authorities or representative organisations of partner third countries, and experts from academia and civil society to such meetings.
Key market actors
Member States shall, in cooperation with the Commission in accordance with Article 19, identify key market actors along the semiconductor supply chains established in their territory, taking into account the following elements:
(a)
the number of other Union undertakings relying on the service or good provided by a market actor;
(b)
the Union or global market share of the key market actor in the market for such services or goods;
(c)
the importance of a market actor in maintaining a sufficient level of supply of a service or good in the Union, taking into account the availability of alternative means for the provision of that service or good;
(d)
the impact a disruption of supply of the service or good provided by the market actor may have on the Union’s semiconductor supply chain and dependent markets.
Section 2 — Alerts and the activation of the crisis stage
Alerts and preventive action
1. Where a national competent authority becomes aware of a risk of serious disruption in the supply of semiconductors or has concrete and reliable information of any other relevant risk factor or event materialising, it shall alert the Commission without undue delay.
2. Where the Commission becomes aware of a risk of serious disruption in the supply of semiconductors or has concrete and reliable information of any other relevant risk factor or event materialising, including on the basis of early warning indicators, upon an alert pursuant to paragraph 1 or from international partners, it shall, without undue delay, carry out the following preventive actions:
(a)
convening an extraordinary meeting of the European Semiconductor Board to coordinate the following actions:
(i)
discussing the severity of the disruptions to the supply of semiconductors;
(ii)
discussing whether initiating the procedure referred to in Article 23 may be necessary and proportionate;
(iii)
discussing whether it is appropriate, necessary and proportionate for Member States to jointly purchase semiconductors, intermediate products or raw materials as a preventive measure (joint procurement);
(iv)
entering into dialogue with stakeholders of the semiconductor value chain with a view to identifying, preparing and possibly coordinating preventive measures;
(b)
on behalf of the Union, entering into consultations or cooperation with relevant third countries with a view to seeking cooperative solutions to address supply-chain disruptions, in compliance with international obligations, which may involve, where appropriate, carrying out coordination in relevant international fora;
(c)
asking national competent authorities to assess the state of preparedness of the key market actors.
3. Any joint procurement carried out following the discussions referred to in paragraph 2, point (a)(iii), shall be carried out by Member States in accordance with the rules set out in Articles 38 and 39 of Directive 2014/24/EU of the European Parliament and of the Council ( 31 ) and in Articles 56 and 57 of Directive 2014/25/EU of the European Parliament and of the Council ( 32 ) .
Activation of the crisis stage
1. A semiconductor crisis shall be considered to occur where:
(a)
there are serious disruptions in the semiconductor supply chain or serious obstacles to trade in semiconductors within the Union causing significant shortages of semiconductors, intermediate products or raw or processed materials; and
(b)
such significant shortages prevent the supply, repair or maintenance of essential products used by critical sectors to the extent that it would have serious detrimental effect on the functioning of the critical sectors due to their impact on society, economy and security of the Union.
2. Where the Commission becomes aware of a potential semiconductor crisis pursuant to Article 22(2), it shall assess whether the conditions of paragraph 1 of this Article are met. That assessment shall take into account the potential positive and negative impacts and consequences of the crisis stage on the Union’s semiconductor industry and critical sectors. Where that assessment provides concrete and reliable evidence, the Commission may, after consulting the European Semiconductor Board, propose to the Council to activate the crisis stage.
3. The Council, acting by qualified majority, may activate the crisis stage by means of a Council implementing act. The duration of the crisis stage shall be specified in the implementing act and it shall not exceed 12 months.
The Commission shall report on a regular basis and in any event at least every three months to the European Semiconductor Board and to the European Parliament on the state of the crisis.
4. Before the expiry of the duration for which the crisis stage was activated, the Commission shall assess whether it is appropriate to prolong the crisis stage. Where such assessment provides concrete and reliable evidence that the conditions for the activation of the crisis are still met, and after consulting the European Semiconductor Board, the Commission may propose to the Council to prolong the crisis stage.
The Council, acting by qualified majority, may prolong the crisis stage by means of a Council implementing act. The duration of the prolongation shall be limited and specified in the Council implementing act.
The Commission may propose prolonging the crisis stage once or more frequently where duly justified.
5. During the crisis stage, the Commission shall, after consulting the European Semiconductor Board, assess the appropriateness of an early termination of the crisis stage. If the assessment indicates so, the Commission may propose to the Council to terminate the crisis stage.
The Council may terminate the crisis stage by means of a Council implementing act.
6. During the crisis stage, the Commission shall, upon request from a Member State or on its own initiative, convene extraordinary meetings of the European Semiconductor Board where necessary.
Member States shall work closely with the Commission, inform in a timely manner about and coordinate any national measures taken with regard to the semiconductor supply chain within the European Semiconductor Board.
7. Upon expiry of the period for which the crisis stage is activated or in the event of its early termination pursuant to paragraph 5 of this Article, the measures taken in accordance with Articles 25, 26 and 27 shall cease to apply immediately.
8. The Commission shall update the mapping and the monitoring of the semiconductor value chains pursuant to Articles 19 and 20 taking into account the experience from the crisis no later than six months after the expiry of the duration of the crisis stage.
Section 3 — Shortage response
Emergency toolbox
1. Where the crisis stage is activated pursuant to Article 23 and where necessary in order to address the semiconductor crisis in the Union, the Commission may take the measure provided for in Article 25, 26 or 27, under the conditions laid down therein.
2. The Commission shall, after consulting the European Semiconductor Board, restrict the application of the measures provided for in Articles 26 and 27 to the critical sectors the operation of which is disturbed or under threat of disturbance on account of the semiconductor crisis. The use of the measures referred to in paragraph 1 of this Article shall be proportionate and restricted to what is necessary for addressing serious disruptions affecting critical sectors in the Union and must be in the best interest of the Union. The use of those measures shall avoid placing disproportionate administrative burden in particular on SMEs.
3. Where the crisis stage is activated pursuant to Article 23 and where appropriate in order to address the semiconductor crisis in the Union, the European Semiconductor Board may:
(a)
assess and advise on appropriate and effective emergency measures;
(b)
assess the expected impact of the possible imposition of protective measures on the Union’s semiconductor sector, considering whether the market situation corresponds to a significant shortage of an essential product pursuant to Regulation (EU) 2015/479 and provide an opinion to the Commission.
4. The Commission shall regularly inform the European Parliament and the Council of any measures taken in accordance with paragraph 1 and explain the reasons for its decision.
5. The Commission may, after consulting the European Semiconductor Board, issue guidance on the implementation and the use of the emergency measures.
Information gathering
1. Where the crisis stage is activated pursuant to Article 23, the Commission may request undertakings operating along the semiconductor supply chain to provide information about their production capabilities, production capacities and current primary disruptions. The requested information shall be limited to what is necessary to assess the nature of the semiconductor crisis or to identify and assess potential mitigation or emergency measures at Union or national level. The information requests shall not entail the supply of information the disclosure of which would be contrary to the Member States’ national security interests.
2. Before launching a request for information, the Commission may carry out a voluntary consultation of a representative number of relevant undertakings with a view to identifying the appropriate and proportionate content of such a request. The Commission shall develop the request for information in cooperation with the European Semiconductor Board.
3. The Commission shall use the secure means and handle any acquired information in accordance with Article 32 to launch the request for information. For this purpose, national competent authorities shall transmit to the Commission the list of contacts established under Article 20(5).
The Commission shall without delay forward a copy of the request for information to the national competent authority of the Member State in whose territory the production site of the addressed undertaking is situated. If the national competent authority so requires, the Commission shall transmit the information acquired from the relevant undertaking in accordance with Union law.
4. The request for information shall state its legal basis, be limited to the minimum necessary and be proportionate in terms of the granularity and volume of the data and frequency of access to the data requested, have regard for the legitimate aims of the undertaking and the cost and effort required to make the data available, and set out the time limit within which the information is to be provided. It shall also state the penalties provided for in Article 33.
5. The owners of the undertakings or their representatives and, in the case of legal persons or associations having no legal personality, the persons authorised to represent them by law or by their constitution shall supply the information requested on behalf of the undertaking or the association of undertakings concerned.
6. If an undertaking supplies incorrect, incomplete or misleading information in response to a request made pursuant to this Article, or does not supply the information within the prescribed time limit, it shall be subject to fines set in accordance with Article 33, except where the undertaking has sufficient reasons for not supplying the requested information.
7. If an undertaking established in the Union is subject to a request for information from a third country, related to its semiconductor activities, it shall inform the Commission, in due time, in such a manner as to enable the Commission to request similar information from the undertaking. The Commission shall inform the European Semiconductor Board of the existence of such request from a third country.
Priority-rated orders
1. Where the crisis stage is activated pursuant to Article 23, the Commission may require integrated production facilities and open EU foundries to accept and prioritise an order of crisis-relevant products (priority-rated order). Such an obligation shall take precedence over any performance obligation under private or public law.
2. Where applicable, the obligation under paragraph 1 can be imposed to other semiconductor undertakings which have accepted such possibility in the context of receiving public support.
3. When a semiconductor undertaking established in the Union is subject to a third-country priority-rated order measure, it shall inform the Commission. If that obligation has a significant impact on the operation of certain critical sectors, the Commission may require that undertaking, where necessary and proportionate, to accept and prioritise orders of crisis relevant products in accordance with paragraphs 5, 6 and 7.
4. Priority-rated orders shall be restricted to beneficiaries who are users of semiconductors from critical sectors or undertakings supplying critical sectors whose activities are disrupted or at risk of disruption and who, having implemented appropriate risk mitigation measures, were unable to avoid and to mitigate the impact of the shortage. The Commission may request a beneficiary to submit appropriate evidence thereof.
5. The obligations under paragraphs 1, 2 and 3 of this Article shall be enacted as a last resort measure by the Commission via decision. The Commission shall take that decision after consulting the European Semiconductor Board and in accordance with all applicable Union legal obligations, having regard to the circumstances of the case, including the principles of necessity and proportionality. The decision shall, in particular, have regard for the legitimate aims of the undertaking concerned and the cost, effort and technical adjustments required for any change in production sequence. In its decision, the Commission shall state the legal basis of the priority-rated order, fix the time-limit within which the order is to be performed, and, where applicable, specify the product and quantity, and, where applicable, state the penalties provided for in Article 33 for non-compliance with such an obligation. The priority-rated order shall be placed at fair and reasonable price.
6. Before issuing priority-rated orders in accordance with paragraph 1, the Commission shall give the envisaged recipient of a priority-rated order the opportunity to be heard on the feasibility and details of the order. The Commission shall not issue the priority-rated order when:
(a)
the undertaking is unable to perform the priority-rated order on account of insufficient production capability or production capacity, or on technical grounds, even under preferential treatment of the order;
(b)
acceptance of the order would place an unreasonable economic burden and entail particular hardship for the undertaking, including substantial risks relating to business continuity.
7. Where an undertaking is required to accept and prioritise a priority-rated order, it shall not be liable for any breach of contractual obligations that is required to comply with the priority-rated orders. The liability shall be excluded only to the extent the violation of contractual obligations was necessary for compliance with the mandated prioritisation.
8. The Commission shall adopt an implementing act laying down the practical and operational arrangements for the functioning of priority-rated orders. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 38(2).
Common purchasing
1. Where the crisis stage is activated pursuant to Article 23, the Commission may, upon the request of two or more Member States, act as a central purchasing body on behalf of all Member States willing to participate (participating Member State) for their public procurement of crisis-relevant products for critical sectors (common purchasing). Participation in the common purchasing shall be without prejudice to other procurement procedures. The request for common purchasing shall set out reasons on which it is based and shall be used exclusively to address supply-chain disruptions of semiconductors leading to the crisis.
2. The Commission shall assess the utility, necessity and proportionality of the request, taking into account the views of the European Semiconductor Board. Where the Commission intends not to follow the request, it shall inform the Member States concerned and the European Semiconductor Board and give reasons for its refusal.
3. The Commission shall draw up a proposal for an agreement to be signed by the participating Member States. Such an agreement shall organise in detail the common purchasing referred to in paragraph 1, including reasons for the use of the common purchasing mechanism and liabilities to be assumed, and establish the mandate for the Commission to act on behalf of the participating Member States.
4. Procurement under this Regulation shall be carried out by the Commission in accordance with the rules set out in Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council ( 33 ) (the Financial Regulation) for its own procurement. The Commission may have the ability and responsibility, on behalf of all participating Member States, to enter into contracts with economic operators, including individual producers of crisis-relevant products, concerning the purchase of such products or concerning the financing of the production or the development of such products in exchange for a priority right to the result.
5. Where the procurement of crisis-relevant products includes financing from the Union budget, specific conditions may be set out in specific agreements with economic operators.
6. The Commission shall carry out the procurement procedures and conclude the contracts with economic operators on behalf of the participating Member States. The Commission shall invite the participating Member States to appoint representatives to take part in the preparation of the procurement procedures. The deployment, use or resale of the purchased products shall remain the responsibility of the participating Member States, in accordance with the agreement referred to in paragraph 3.
7. The deployment of common purchasing pursuant to this Article shall be without prejudice to other instruments provided for in the Financial Regulation.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
