In the latest instalment of our Antitrust Review podcast, host Nick Levy is joined by colleagues from Cleary Gottlieb’s Brussels
Foreign Subsidies
The EU Foreign Subsidies Regulation in Practice: First Cases and Enforcement Trends
Almost eight months since taking full effect, the EU’s enforcement agenda for the Foreign Subsidies Regulation (FSR) is coming into focus. The European Commission (EC) has launched several in-depth and ex officio cases, and reviewed over 150 notifications.
European Commission In A “Reflection Mode” Following CJEU Loss In The Engie State Aid Case
Any Room Left For Non-Discrimination On Grounds Of Nationality And The ‘Balancing Test’ In Crisis Aid? Ryanair v. Commission (Swedish And French Schemes; COVID-19)
Commission v. Ireland and Others (Case C-465/20 P): Opinion of Advocate General Pitruzzella
On November 9, 2023, Advocate General Pitruzzella delivered his Opinion,[1] proposing that the Court of Justice uphold the appeal brought by the European Commission (“Commission”)[2] against the General Court judgment of July 15, 2020,[3] which annulled the Commission decision of August 30, 2016, finding that the Republic of Ireland (“Ireland”) had granted €13 billion in undue tax benefits to Apple Inc (“Apple”).[4] The Commission had found that Ireland granted a selective advantage to Apple through two individual tax decisions (“tax rulings”[5]) adopted in 1991 and 2007, addressed to the Irish-based subsidiaries, Apple Sales International (“ASI”), and Apple Operations Europe (“AOE”) (together, “the Irish branches”). As AG Pitruzzella pointed out, this case is part of a “series of somewhat extensive cases concerning the application of Article 107(1) TFEU to tax rulings.”[6]
Notification Obligations under the EU Foreign Subsidies Regulation Take Effect
On October 12, 2023, the notification obligations under the EU Foreign Subsidies Regulation (FSR) took effect. Businesses must notify all M&A deals (if signed on or after July 12 and not yet implemented by October 12) and public procurement tenders (for offers submitted on or after October 12) meeting the relevant thresholds.
France Prohibits Acquisition of Nuclear Reactor Parts Suppliers by U.S. Firm Under FDI Rules
The French Ministry for Economy has blocked under FDI rules U.S.-based leading provider of fluid motion and control products and services Flowserve Corporation’s (“Flowserve”) USD 245 million proposed acquisition of Velan Inc (“Velan”), a Canada-based leading provider of industrial steel valves.[1]
EU Foreign Subsidies: Filing Forms Adopted and Regulation Takes Effect
The EU FSR filing forms have been adopted and the regime is now in effect. Businesses must prepare to notify…
Commission v. Luxembourg (C-457/21): Advocate General Kokott Sides with Amazon in State Aid Tax Ruling Case
On June 8, 2023, Advocate General Kokott delivered her opinion on the Commission’s appeal of the General Court’s judgment annulling the Commission’s decision finding that Luxembourg had granted unauthorized State aid to Amazon in the form of a tax advantage. [1] Advocate General Kokott’s opinion endorsed the recent Court of Justice’s findings in Fiat,[2] which confirmed that there is no EU-wide arm’s length principle that the Commission can use as a standard of review for Member States’ tax decisions under EU State aid rules. This opinion signals that the Fiat judgement will likely be the guide for ongoing and future tax ruling cases and investigations.
Commission Consults on Notification Requirements and Process for EU Foreign Subsidies Regulation
On February 6, 2023, the European Commission (“Commission”) launched a public consultation on its proposed rules and procedures for merger and public procurement notifications under the EU Foreign Subsidies Regulation (“FSR”).