GSMA对FSR指南草案的反馈

GSMA Feedback on thedraftFSR Guidelines The GSMA welcomes the European Commission’s(the “Commission”) consultation on thedraftGuidelines on the implementation of the Foreign Subsidies Regulation(“FSRGuidelines”).ThedraftFSR Guidelinesare recognised as a positive step, offering much-needed practicalguidanceonseveralcritical issues of the Commission’sanalytical approach. Specifically, the draft FSRGuidelines addressand provide clarification on:(i) the finding of a distortion of competitioncaused by a foreign subsidy,(ii)the balancing test, and (iii)the Commission's power to requestthe prior notification ofbelow the thresholdsconcentrations or of foreign financial contributionsin public procurementprocedures. As highlighted by the GSMA in prior submissions and discussions with the Commission, the FSRhas imposed notablenew obligations on companies operating in the internal market. Inparticular,the FSR has introducedextensivemonitoring and reportingobligationsfor foreignfinancial contributions, which are typically grounded in the routine activities of companies,suchas telecommunication operators,both within and beyond the EuropeanUnion.Therefore, thepublication of the draft FSR Guidelines demonstrates that theCommissionis on the right tracktowards providing greater predictability and transparency regarding this instrument.Nevertheless,the GSMA emphasises again the need for further procedural clarifications, whichwe will elaborateonbrieflyatthe endofoursubmission. Overall,the analytical approach adopted in the draft FSR Guidelines allows for furtherdevelopmentand adaptation based on practical experience,thereby strengthening thenecessary flexibility of the FSR. However, there is still room for more clarification.In ordertohelpaddress the uncertainty surrounding individual decisions,the Commission shouldprovide ongoing guidance based on concrete findingsfrom its case practice, e.g.,bypublishingdecisionspromptlyand continuously updating the Q&A materials.Given some of the uncertaintyin individual decisions, it is crucial that the level of protectionenvisioned inthe FSR is notweakened. GSMA’s remarks on thedraft FSR Guidelinesarestructured according tothe sections of the draftFSR Guidelines: 1)DraftFSR Guidelines:Section 2 Application of the criteria for determining theexistence of a distortion according to articles 4(1) and 27 of Regulation 2022/2560 This section provides very useful guidance onthe situations wherea foreign subsidy isliable toimprovethe competitive position of an undertaking in the internal market andwhere,indoing so,the foreign subsidy can actually or potentially negatively affectcompetition in the internal market.In our view, the inclusion of concrete illustrations drawn from enforcement practice(e.g., therecent e& decision)is indispensable for undertakings seeking to achieve FSR compliance, because it enables them to conduct a robust, forward-looking risk assessment. We wouldthereforerespectfully encourage the Commission totake into account the case experienceacquiredbyenforcingFSR and, in that light, to publish relevant decisions and update the existingQ&As promptly and systematically. As regardsthe criteria for determining whether a foreign subsidy isliableto improve thecompetitive position of the undertakingin the internal market: -Paras.21 and22 of thedraft FSRGuidelinesestablishthatsubsidiesintendedto supportundertakings’ activities in the internal market are typically liable to improve theundertakings’ competitive position in the market. The Commission provideshelpfulpracticalexamples:“when the foreign subsidy is granted to support economic activitiesof the undertaking in the internal market (e.g. to subsidise the costs of manufacturing inthe internal market, distribution activities that take place in the internal market, theprovisionof services to undertakings in the internal market or technology licencing tolicensees active in the internal market) or when it is conditional on events related to aneconomic activity in the internal market (e.g. subsidies conditioned on investments oracquisitions in the internal market)”. However, these examples relate to commonpractices of shareholders’ decisionsin a companythatcannot,per se,be considered asanadvantagetothe competitive position of anundertaking in the internal market. Intheseinstances,a case-by-case analysis is necessary. The Commission should clarify that,whereinvestments are made on markettermsandin accordance withfair businesspractice,there should be nopresumption of advantage, but the Commission must assesson a case-by-case basis.Such clarification is essentialto avoid creating legal uncertaintyregardinginvestors’decisions in the EU.In addition, it would beuseful if the Commissionprovidedclarification onhowan undertaking may effectively rebut an allegation that asubsidy, whichoriginallywasnot intended for use within the internal market,has, inpractice, been soutilised.Clear guidanceon the types of evidence, documentation, orfac