Abstract
The paper starts from EU legal treatment of foreign subsidies and the anticipated conclusion of filling existent gaps in this area. In Sect. 2, breaches in EU competition law are scrutinized, particularly in the light of the EU merger control regime and articles 101 and 102 of the TFEU. In Sect. 3, the effects of foreign subsidies in the EU internal market are studied from the point of view of state aid rules. Finally, in Sects. 4 and 5 the new EU FDI-screening Regulation, the White Paper on levelling the playing field as regards foreign subsidies and the proposal of a new EU Regulation to address distortions caused by foreign subsidies in the Single Market are examined.
It is concluded that the EU is gradually becoming more proactive and equipped with legal instruments that welcome the effects theory and which will allow the EU to evaluate economic policies followed by third countries, especially related to investments in the EU when associated with foreign subsidies. Here, it remains to be seen how third countries will react to those EU instruments particularly considering the reciprocity principle and possible negative reaction from those countries.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Change history
05 January 2022
The book was inadvertently published with a typo in Bruno Striebel’s name, whose work is cited in the chapter. The correction has been made now.
Notes
- 1.
See the data collected by the Global Trade Alert available at https://www.globaltradealert.org/global_dynamics (last accessed in October 2020).
- 2.
Rodrigues (2017), p. 135.
- 3.
This idea is aligned with international economic theories that start from game theory. According to those theories, the main reason why states have kept commitments, even those that have produced a lower level of returns than expected, was because they fear that any evidence of unreliability would damage their cooperative relationships and, if that happens, lead other states to reduce their willingness to enter future agreements.
In the past, those economic theories arguing that reputational concerns helped to ensure states maintained their agreements were questioned because (1) states have different levels of reliability about different agreements, and (2) there is considerable evidence that states possess multiple or segmented reputations. Downs and Jones (2002), p. S95.
- 4.
See 38th Annual Report from the Commission to the Council and the European Parliament on the EU's Anti-Dumping, Anti-Subsidy and Safeguard activities and the Use of trade defence instruments by Third Countries targeting the EU in 2019, Brussels, 30.4.2020, COM(2020) 164 final, available at https://trade.ec.europa.eu/doclib/docs/2020/may/tradoc_158733.PDF (last accessed in October 2020).
- 5.
See Communication from the Commission: Guidance on the participation of third country bidders and goods in the EU procurement market, Brussels, 24.7.2019 C(2019) 5494 final.
- 6.
See the International Public Procurement Initiative (IPPI) available at https://trade.ec.europa.eu/doclib/docs/2019/november/tradoc_158432.pdf (last accessed in October 2020) or Regulation 2019/452 of the European Parliament and of the Council of 19th March 2019 concerning foreign direct investment.
- 7.
Data concerning cases launched by EU are available at https://trade.ec.europa.eu/wtodispute/search.cfm?code=1 (last accessed in October 2020).
- 8.
In February 2020, the position of Chief Trade Enforcement Officer of the EU was created (“will ensure compliance with the provisions in the agreements concerning the environment, climate and workers’ rights.”). See EC press release IP/20/1409.
- 9.
See Communication from the Commission—A New Industrial Strategy for Europe, Brussels, 10.3.2020, COM(2020) 102 final.
- 10.
See White Paper on levelling the playing field as regards foreign subsidies, Brussels, 7.6.2020, COM(2020) 253 final, p. 5.
- 11.
Garcia-Duran and Eliasson (2018), pp. 7–32.
- 12.
On the distinction between “deep” and “shallow” agreements, see World Trade Organization, “World Trade Report: The WTO and preferential trade agreements: From co-existence to coherence”, 2011 available at https://www.wto.org/english/res_e/booksp_e/anrep_e/world_trade_report11_e.pdf (last accessed in October 2020). Two distinct dimensions of deep integration are the “extensive” and the “intensive” margin. The extensive margin refers to an increase in the policy areas covered by an agreement, while the intensive margin refers to the institutional depth of the agreement. The extensive and intensive dimensions of deep agreements may be related, as an extension of the coverage of an agreement may require the creation of common institutions for its proper functioning. See also Melo Araujo (2017), pp. 164–168.
- 13.
See Eurostat, World direct investment patterns, July 2018, available at https://ec.europa.eu/eurostat/statistics-explained/index.php/World_direct_investment_patterns (last accessed in October 2020).
- 14.
Rodrigues (2017).
- 15.
This means that a State cannot take measures in the territory of another State, through the application of national laws, without the latter’s consent. This is, of course, the case of EU law, the application of which presupposes an adequate link with the territory of the Union, in order to respect that basic principle.
- 16.
This is the case, for example, when a particular action is committed in a State’s territory, even if part of that action has been carried out in another State (objective territoriality) (e.g. in cases resulting from the application of criminal law or commercial law); when jurisdiction is established on the basis of the need to prosecute and sanction certain types of crime which are internationally recognized (e.g. criminal law and actions related to the repair of damages in civil law) (Principle of universality); according to the effective control exercised by a State over the territory or individuals of another State (e.g. in situations where it is necessary to ensure respect for human rights) (Principle of “effective control”); when jurisdiction derives from the nationality or national character of the person who committed the offence or the person or national interest injured by the offence which will determine the application of national law (e.g. criminal law) (Principle of nationality); arising from the existence of a real and substantial connection between companies or persons in different jurisdictions (e.g. vis-à-vis subsidiaries of foreign companies). Scott (2014b). With examples considering the extraterritorial application of the European Convention on Human Rights, Ryngaert (2012), pp. 57–60.
- 17.
The application of these principles should not, however, make us forget that, in determining extraterritorial competence, even when according to the exceptions allowed by Public International Law, some moderation is required, given the so-called “international comity”.
This moderation results, in some cases, from the application of norms of international law (or, as will be analysed below, EU law) or even of domestic law that aim to mitigate or prevent the production of extraterritorial effects of the law of a third country. See Geradin et al. (2011).
- 18.
Prete (2018).
- 19.
- 20.
See article 4 of Regulation (EU) 995/2010 of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market. See article 3/1/(f) of Directive 2012/19/EU of 4 July 2012 on waste electrical and electronic equipment. See article 25-A of Directive 2008/101/EC of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community. Concerning the application of this Regulation, see Judgement of 21 December 2001, ATA, C-366/10, EU:C:2011:864. Commenting on this case, see de Geert and Cedric (2013), p. 410.
- 21.
See Regulation 1007/2009 of 16 September 2009 on trade in seal products. Concerning seal products, see also the WTO panel European Communities – measures prohibiting the importation and marketing of seal products—WT/DS400/R—WT/DS401/R, available at https://www.wto.org/english/tratop_e/dispu_e/400_401r_e.pdf (last accessed in October 2020).
- 22.
See article 4/1/(c) of Regulation 648/2012 of 4 July 2012 on OTC derivatives, central counterparties and trade repositories.
- 23.
See article 4/3/(c) of Regulation 1060/2009 of 16 September 2009 on credit rating agencies.
- 24.
- 25.
See Council Regulation (EC) No 2271/96 of 22 November 1996.
- 26.
Behrens (2016), p. 8.
- 27.
See UNDP, Using Competition Law to Promote Access to Health Technologies, 2014, p. 94, available at https://hivlawcommission.org/wp-content/uploads/2017/06/UNDP-Using-Competition-Law-to-Promote-Access-to-Medicine-05-14-2014-1.pdf (last accessed in October 2020). Discussing the application of the effects-theory in Gal (2009), Available at SSRN: https://ssrn.com/abstract=1333151 (last accessed in October 2020).
- 28.
Judgment of 14 July 1972, ICI v. Commission, C-48/69, EU:C:1972:70.
- 29.
Judgment of 14 July 1972, ICI v. Commission, C-48/69, EU:C:1972:70, paras. 128–135.
- 30.
Judgment of 20 January 1994, Ahlström Osakeyhtiö and Others v Commission, C-89/85, EU:C:1988:447, para. 16.
- 31.
Judgment of 25 March 1999, Gencor Ltd v. Commission, T-102/96, EU:T:1999:65.
- 32.
Judgment of 25 March 1999, Gencor Ltd v. Commission, T-102/96, EU:T:1999:65, para. 90.
- 33.
Judgment of 6 September 2017, Intel v Commission, C-413/14 P, EU:C:2017:632.
- 34.
Judgment of 12 June 2014, Intel v Commission, T-286/09; EU:T:2014:547.
- 35.
Judgment of 6 September 2017, Intel v Commission, C-413/14 P, EU:C:2017:632, para 45.
- 36.
V. US v. Aluminum Company of America and others, 44 F. Supp. 97; 148 F. 2d 416.
At stake was a cartel composed of foreign companies that agreed among themselves that each company would pay royalties to the others if its own aluminum production exceeded a certain level. Aluminum production was limited to the level set in the agreement, which resulted in the lack of aluminum in the USA due to the reduction in imports to this country.
In this case, the US court applied national competition law because it considered that “any state can impose responsibility for conduct that occurs outside its borders that has consequences within its borders”.
This judicial understanding was supported by the Sherman Act. There was a general prohibition on the violation of competition law without any geographical limits.
- 37.
- 38.
This doctrine is recognized by the Association of International Law that identified it as a principle of international law at the 55th Conference held in New York, in 1972.
The Association recognized that the extraterritorial application of domestic laws is legitimate if the following conditions are met:
-
(a)
the actions and their effects constitute activities that fall within the scope of the law;
-
(b)
there are significant domestic effects; and
-
(c)
these domestic effects are the direct and main result of extraterritorial actions.
In 1977, the Institut de Droit International also declared that the jurisdiction over the rules that regulate the anti-competitive activities of multinational companies can be determined by the doctrine of effects and may lead to the extraterritorial application of domestic law if the actions carried out produce intentional effects or are, at least, predictable, substantial, direct and immediate within a territory.
-
(a)
- 39.
UNDP (2014), p. 95, available at https://hivlawcommission.org/wp-content/uploads/2017/06/UNDP-Using-Competition-Law-to-Promote-Access-to-Medicine-05-14-2014-1.pdf (last accessed in October 2020).
- 40.
Hoffmann-LaRoche v. Empagran, 542 US 155, 165 (2004).
- 41.
Motorola Mobility LLC v. AU Optronics Corp., No. 14-8003 (7th Cir. 2014).
- 42.
See supra footnote 16.
- 43.
Fahey (2016), p. 31.
- 44.
Some of these problems could be solved through international cooperation between NCAs. See OECD working party no. 3 on Co-operation and Enforcement - Roundtable on the Extraterritorial Reach of Competition Remedies DAF/COMP/WP3(2017)4. Becker (2016), pp. 99–122.
- 45.
See https://www.justice.gov/atr/merger-enforcement (last accessed in October 2020).
- 46.
See https://www.jftc.go.jp/en/ (last accessed in October 2020).
- 47.
See https://en.nim.ac.cn/node/647 (last accessed in October 2020).
- 48.
This is similar to the argument presented by Michal Gal concerning small economies: “the main problem is that small economies can rarely make a credible threat to prohibit the conduct of a foreign firm, especially if it has positive effects elsewhere that do not result only from the negative effects in the small jurisdiction.” Gal (2009), Available at SSRN: https://ssrn.com/abstract=1333151 (last accessed in October 2020).
- 49.
This is the case with Chinese merger control, considered by many to be protectionist. See Petit (2016), p. 69 ff.; Arnaudo (2017), pp. 1–11, available at SSRN: https://ssrn.com/abstract=3102370, pp. 5–7; Heim (2011), p. 45.
- 50.
See, for example, the merger operation UTC/Goodrich in 2009. The EC decided that the operation would not have significant impediments to effective competition regarding aircraft lighting, provided that the companies involved accepted the remedies imposed by the EC. At the same, the FTC approved the transaction with non-conflicting remedies of divestitures of assets located in several jurisdictions, after working closely with other competition authorities such as the Canadian Competition Bureau (CCB), the Mexican CFC and the Administrative Council for Economic Defence in Brazil (CADE).
Similarly, see the merger operation between Panasonic and Sanyo which was approved by the Chinese Competition Authority by the (then) Ministry of Commerce on October 31, 2009 with remedies, after a 9-month review period, different from that which occurred in other jurisdictions.
- 51.
Article 21/4 of the Merger Regulation. Jones and Davies (2014), p. 453 ff., available at http://www.tandfonline.com/doi/pdf/10.5235/17441056.10.3.453?needAccess=true and Fountoukakos and Herron (2017), available at https://www.competitionpolicyinternational.com/wp-content/uploads/2017/12/Europe-Column-December-Full.pdf (last accessed in October 2020).
Similarly, defining an EU privilege for owning more than 50% of airlines companies, see article 4 (f) of Regulation 1008/2008 of 24 September 2008 on common rules for the operation of air services in the Community.
- 52.
See Foreign Investment Law (approved on 15 March 2019) (available at http://www.fdi.gov.cn/1800000121_39_4872_0_7.html) which includes two negative lists which enumerate the industries where foreign investment will either be prohibited or restricted. In China, see also the National Security Review Regime Under The New Foreign Investment Law, that came into effect on 1 January 2020.
Referring to 2016, see the sixth WTO Trade Policy Review of China Report WT/TPR/S/342 available at https://www.wto.org/english/tratop_e/tpr_e/s342_e.pdf (last accessed in October 2020).
- 53.
Case no IV/M.877—Boeing/McDonnell Douglas.
- 54.
Case COMP/M.2220—General Electric/Honeywell. Monti (2019), p. 177; Lim (2017), pp. 434–437.
Concerning these two cases and concluding that the EU's exercise of extraterritorial competition policy derives from reasonable objections to the merger, the practical desire co-ensures market access opportunities for European firms and the need to enhance Union credibility in the eyes of member states, see Damro (2001), pp. 208–226, DOI: 10.1080/13501760110041550.
- 55.
Case T-156/98 RJB Mining plc v Commission of the European Communities [2001] ECR II-337.
- 56.
Case IV/ECSC.1252.
- 57.
Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings.
- 58.
Case No COMP/M.4956.
- 59.
See paragraph 70 of the decision.
- 60.
See paragraph 82.
- 61.
See paragraph 84.
- 62.
See White Paper on levelling the playing field as regards foreign subsidies, p. 9.
- 63.
Carpi (2020), p. 25.
- 64.
See White Paper on levelling the playing field as regards foreign subsidies, p. 9.
- 65.
See White Paper on levelling the playing field as regards foreign subsidies, pp. 40–41.
- 66.
See EC implementing Regulation (EU) 2020/776 of 12 June 2020 imposing definitive countervailing duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People's Republic of China and Egypt and amending Commission Implementing Regulation (EU) 2020/492 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt.
- 67.
OJ L 176, 30.6.2016.
- 68.
See paragraph 715 of the GFF case.
- 69.
See paragraph 671 of the GFF case.
- 70.
See Commission Implementing Regulation (EU) 2017/649 imposing a definitive anti-dumping duty on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in the People's Republic of China (OJ L 146, 9.6.2017, p. 17) (‘HRF case’).
- 71.
In the same direction, see paragraph 672 of the GFF case.
- 72.
According to paragraph 684 of the decision, “the Commission considered that the term ‘by the government’ in Article 3(1)(a) of the basic Regulation should include not only measures directly emanating from the GOE but also those measures by the GOC which can be attributed to the GOE on the basis of the available evidence.”
- 73.
See paragraph 716 of the GFF case.
- 74.
See paragraph 717 of the GFF case.
- 75.
See Frankel (2005), Victoria University of Wellington Legal Research Paper No. 2/2014, Available at SSRN: https://ssrn.com/abstract=795986 (last accessed in October 2020). For a general discussion of the conflict of norms in public international law and the WTO, Pauwelyn (2003).
- 76.
Considering possible EU liability and protection of individual rights for breaches of WTO law, see Micklitz and Wechsler (2018).
- 77.
See the White Paper on levelling the playing field as regards foreign subsidies, p. 43.
- 78.
Here, it may happen that if a new legal EU instrument is approved, overlaps may occur due to the aforementioned bilateral approach. In this scenario, the EU proposes, in the White Paper, that the action under a new instrument could be suspended.
- 79.
See the Foreign Investment Law (approved in 15 March 2019) (available at http://www.fdi.gov.cn/1800000121_39_4872_0_7.html) which includes two negative lists enumerating the industries where foreign investment will either be prohibited or restricted. In China, see also the National Security Review Regime under the New Foreign Investment Law, that came into effect on 1 January 2020.
- 80.
See Striebel (2019), p. 252.
- 81.
See European Commission and HR/VP contribution to the European Council EU-China—A strategic outlook, 12 March 2019, p. 1, available at https://ec.europa.eu/commission/sites/beta-political/files/communication-eu-china-a-strategic-outlook.pdf (last accessed in October 2020).
- 82.
For the purposes of the Regulation FDI means an investment of any kind by a foreign investor aiming to establish or to maintain lasting and direct links between the foreign investor and the entrepreneur to whom or the undertaking to which the capital is made available in order to carry on an economic activity in a Member State, including investments which enable effective participation in the management or control of a company carrying out an economic activity. See article 2 of Regulation 2019/452 of 19 March 2019 establishing a framework for the screening of foreign direct investments into the Union.
- 83.
See Brussels, 25.3.2020 C(2020) 1981 final.
- 84.
See article 3/1 of the Regulation.
- 85.
See Article 8/2/c) of the FDI-screening Regulation.
- 86.
See page 3 of the 2020 FDI Communication referring for instance whether investments may lead to over-reliance on foreign investors from third countries for the provision of essential supplies or essential services.
- 87.
Judgment of 4 June 2002, Commission / Belgium, C-503/99, paragraph 47: “the Court has also held that the requirements of public security, as a derogation from the fundamental principle of free movement of capital, must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the Community institutions.” See Kessedjian (2007), pp. 25–36.
- 88.
- 89.
This argument can be perceived after reading Recital 4 of the Regulation, according to which this is without prejudice to the right of Member States to derogate from the free movement of capital as provided for in point (b) of Article 65(1) TFEU.
- 90.
Brussels, 17.6.2020 COM(2020) 253 final.
- 91.
Brussels, 5.5.2021 COM(2021) 223 final.
- 92.
This was recognized by the European Court of Auditors in a recent paper published in 2020 entitled The EU's response to China's state-driven investment strategy, available at https://www.eca.europa.eu/en/Pages/DocItem.aspx?did=54733 (last accessed in October 2020).
- 93.
See Non-paper - Strengthening the level playing field on the internal market, available at https://www.permanentrepresentations.nl/documents/publications/2019/12/09/non-paper-on-level-playing-field (last accessed in October 2020).
- 94.
The letter is available at https://www.bmwi.de/Redaktion/DE/Downloads/S-T/schreiben-de-fr-it-an-malmstroem.pdf?__blob=publicationFile&v=5 (last accessed in October 2020).
- 95.
Regulation 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union, OJ L 176, 30.6.2016, p. 55.
- 96.
Regulation 2019/712 of the European Parliament and of the Council of 17 April 2019 on safeguarding competition in air transport.
- 97.
This is clearly the case with China. As is recognized by the European Court of Auditors in the EU's response to China's state-driven investment strategy document, p. 5, “State-Owned Enterprises benefitting from Chinese public financing form part of this Chinese investment strategy. Under EU rules such subsidies, if granted by Member States, would be treated as state aid. This difference in treatment makes it difficult for the EU to achieve a level playing field vis-à-vis China.”
The same document (p. 54) recognizes that the Chinese “Belt and Road Initiative” (BRI) is mainly financed by the Chinese state (in 2018, the funding was calculated to be more than US$750 billion).
- 98.
See White Paper on levelling the playing field as regards foreign subsidies, p. 16.
- 99.
See paragraph 4.1.5. of the White Paper. Phase 1 is equivalent to a preliminary review of a possible distortion on the internal market arising from the existence of a foreign subsidy and phase 2 an in-depth investigation.
- 100.
- 101.
In June 2014, the Lithuanian Competition Authority imposed a fine of almost 36 million euros, the largest anti-trust fine ever in the country, on Gazprom for its refusal to negotiate. Bailiffs were tasked with enforcing the payment after the Russian company missed a deadline for paying the fine, but they failed to find any Gazprom assets in Lithuania. See https://www.baltictimes.com/lithuanian_anti-trust_body_says_recovering_fine_from_gazprom_is_difficult/ (last accessed in October 2020).
- 102.
Under EU State aid rules, this status (and corresponding due process rights, such as access to information) is traditionally limited because the EU Member State granting the aid is the main defending party and is bound by a duty to cooperate with the EU institutions. This might not be possible here, even in cases where the beneficiary faces sanctions in the form of fines or a prohibition from acquiring a company.
- 103.
The White paper recognizes this possibility (p. 9, footnote 12). Nevertheless, it states that in the case of parallel procedures under the FDI Screening Regulation, Merger rules and/or any new legal instrument, those instruments will include a mechanism to address any overlap and ensure that procedures are efficient.
- 104.
Article 69 of Directive 2014/24 on public procurement allows procuring authorities to reject “abnormally low tenders” due to State aid.
- 105.
See article 27 (2) of the proposal for a new Regulation to address distortions caused by foreign subsidies in the Single Market. The White Paper had undefined thresholds.
- 106.
See article 26 of the proposal for a new Regulation to address distortions caused by foreign subsidies in the Single Market.
- 107.
The possible scrutiny of EU funds can be exemplified with the construction of the Pelješac bridge in Croatia. In 2017, the Commission allocated €357 million of Cohesion Policy funds to cover 85% of the cost of the bridge in order to connect the area in the South around Dubrovnik to the rest of mainland Croatia. In 2018, the Croatian authorities awarded a major construction contract for this bridge to a Chinese consortium led by the SOE China Road and Bridge Corporation, thereby financing a project which is part of the Chinese investment strategy. See European Court of Auditors, The EU’s response to China’s state-driven investment strategy, p. 39.
- 108.
In the White Paper, the EC is silent on whether the same subsidy (with respect to a company manufacturing goods) might be caught both by anti-subsidy duties and by measures of redress under Modules 1 or 2.
The White Paper interestingly contemplates the possibility of suspending actions under the new legal instruments if it appears “more appropriate” to use the relevant agreement’s dispute settlement provision to tackle the foreign subsidy. It remains to be seen how the EU will attempt to implement these principles while complying with its international commitments.
- 109.
See White Paper on levelling the playing field as regards foreign subsidies, p. 46.
- 110.
See Judgement of 3 April 2014, French Republic v European Commission, C-559/12 P, EU:C:2014:217, paragraph 95. Judgement of 1 December 1998, Ecotrade, C-200/97, EU:C:1998:579, paragraph 43. Judgement of 19 March 2013, Bouygues et Bouygues Télécom v Commission and Others, Joined Cases C-399/10 P and C-401/10 P, EU:C:2013:175, paragraph 107.
- 111.
See Judgement of 3 April 2014, French Republic v European Commission, C-559/12 P, EU:C:2014:217, paragraph 96.
- 112.
Judgement of 17 September 2009, MTU Friedrichshafen GmbH, C-520/07 P, EU:C:2009:557, paragraph 54.
- 113.
This hypothesis is recognized in the White Paper on levelling the playing field as regards foreign subsidies, p. 18.
- 114.
See White Paper on levelling the playing field as regards foreign subsidies, p. 13.
- 115.
Judgement of 13 February 1979, Hoffmann-La Roche, C-85/76, EU:C:1979:36.
References
Arnaudo L (2017) On foreign investment and merger controls: a law and geoeconomics view. Opinio Juris in Comparatione 1:1–11, Available at SSRN: https://ssrn.com/abstract=3102370
Becker BB (2016) Decentralized globalization: possible solutions for multiple merger control regimes in cross-border transactions. Revista do IBRAC 22(1):99–122
Behrens P (2016) The extraterritorial reach of EU competition law revisited: the “effects doctrine” before the ECJ. Europa-Kolleg Hamburg, Discussion Paper No 3/16
Burke-White WW, Von Staden A (2008) Investment protection in extraordinary times: the interpretation and application of non-precluded measures provisions in bilateral investment treaties. Va J Int Law 48(2):309–411
Carpi JM (2020) EU merger control in a globalised economy. J Compet Law Policy Debate 6(1):54–69
Cseres K (2018) Competition law enforcement beyond the nation-state: a model for transational enforcement mechanisms? In: Micklitz H-W, Wechsler A (eds) The transformation of enforcement – European economic law in a global perspective. Hart Publishing, Oxford, pp 319–339
Damro C (2001) Building an international identity: the EU and extraterritorial competition policy. J Eur Public Policy 8(2):208–226. https://doi.org/10.1080/13501760110041550
de Geert B, Cedric R (2013) The ECJ’s judgment in air transport Association of America and the international legal context of the EU’s climate change policy. Eur Foreign Aff Rev 18:389, 410
Demedts V (2019) The future of international competition law enforcement – an assessment of the EU’s cooperation efforts, Studies in EU External relations, vol 14. Brill Nijhoff, Leiden
Diebold NF (2007) The morals and order exceptions in WTO law: balancing the toothless tiger and the undermining mole. J Int Econ Law 11(1):43–74. https://doi.org/10.1093/jiel/jgm036
Downs GW, Jones MA (2002) Reputation, compliance, and international law. J Legal Stud XXXI:S95
Fahey E (2016) The global reach of EU law. Taylor & Francis, Milton Park
Fountoukakos K, Herron M (2017) Merger control and the public interest: European spotlight on foreign direct investment and national security. Compet Policy Int, available at https://www.competitionpolicyinternational.com/wp-content/uploads/2017/12/Europe-Column-December-Full.pdf
Frankel SR (2005) The WTO’s application of ‘the customary rules of interpretation of public international law’ to intellectual property. Va J Int Law 46:365–428, Victoria University of Wellington Legal Research Paper No. 2/2014, available at SSRN: https://ssrn.com/abstract=795986
Gal M (2009) Extra-territorial application of antitrust - the case of a small economy (Israel) (January 26, 2009). In: Guzman A (ed) Cooperation, comity, and competition policy. Oxford University Press, Oxford, Available at SSRN: https://ssrn.com/abstract=1333151. Last accessed in Oct 2020
Garcia-Duran P, Eliasson LJ (2018) Squaring the circle: assessing whether the European Union’s pursuit of bilateral trade agreements is compatible with promoting multilateralism. J Self-Governance Manag Econ 6(1):7–32
Geradin D, Reysen M, Henrym D (2011) Extraterritoriality, comity and cooperation in the EU competition law. In: Guzman Andrew T (ed) Cooperation, comity, and competition policy. Oxford University Press, Oxford
Heim M (2011) Reflections on the politics of competition policy. Compet Law Int 7:42, 45
Jones A, Davies JM (2014) Control and the public interest: balancing EU and National Law in the protectionist debate. Eur Compet J 10(3):453 ff, available at http://www.tandfonline.com/doi/pdf/10.5235/17441056.10.3.453?needAccess=true
Kessedjian C (2007) Public order in European law. Erasmus Law Rev 01(01):25–36
Kuner C (2019) The internet and the global reach of EU Law. In: Cremona M, Scott J (eds) EU law beyond EU borders: the extraterritorial reach of EU law. Oxford University Press, Oxford, pp 112–144
Lim D (2017) State interest as the main impetus for U.S. antitrust extraterritorial jurisdiction: restraint through prescriptive comity. Emory Int Law Rev 31:415, 448
Melo Araujo BA (2017) Setting the rules of the game: the rise (and fall) of mega-regionals, deep integration and the role of the WTO. UCLA J Int Law Foreign Aff 21:164–168. 151, 203
Micklitz H-W, Wechsler A (eds) (2018) The transformation of enforcement – European economic law in a global perspective. Hart Publishing, Oxford
Monti G (2019) The global reach of EU competition law. In: Cremona M, Scott J (eds) EU law beyond EU borders: the extraterritorial reach of EU law. Oxford University Press, Oxford, pp 174–196
Pauwelyn J (2003) Conflict of norms in public international law: how WTO law relates to other rules of international law. Cambridge University Press, Cambridge
Petit N (2016) Chinese state capitalism and western antitrust policy. Concurrences (4):69 ff
Phan T (2016) The legality of extraterritorial application of competition law and the need to adopt a unified approach. La Law Rev 77:425, 478
Prete L (2018) On implementation and effects: the recent case-law on the territorial (or extraterritorial?) Application of EU competition rules. J Eur Compet Law Practice 9:487–495
Rodrigues NC (2017) The use of public procurement as a non-tariff barrier: relations between the EU and the BRICS in the context of the new EU trade and investment strategy. Public Procure Law Rev 3:135–149
Ryngaert C (2012) Clarifying the extraterritorial application of the European Convention on human rights. Merkourios Utrecht J Int Eur Law 28(74):57–60
Ryu JH (2016) Deterring foreign component cartels in the age of globalized supply chains. Wake Forest J Bus Intellect Prop Law 17:81, 113
Scott J (2014a) Extraterritoriality and territorial extension in EU law. Am J Comp Law 62:87–126
Scott J (2014b) The new EU “extraterritoriality”. Common Market Law Rev 51:1343–1380
Striebel B (2019) The principle of reciprocity and foreign direct investment in the EU. RFDUL/Lisbon Law Rev LXI:247–264
Svantesson DJB (2014) The extraterritoriality of EU data privacy law - its theoretical justification and its practical effect on U.S. businesses. Stand J Int Law 50:53, 102
UNDP (2014) Using competition law to promote access to health technologies, Available at https://hivlawcommission.org/wp-content/uploads/2017/06/UNDP-Using-Competition-Law-to-Promote-Access-to-Medicine-05-14-2014-1.pdf
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2021 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
Cunha Rodrigues, N. (2021). Filling the Regulatory Gap to Address Foreign Subsidies: The EC’s Search for a Level Playing Field Within the Internal Market. In: Cunha Rodrigues, N. (eds) Extraterritoriality of EU Economic Law. European Union and its Neighbours in a Globalized World, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-030-82291-0_10
Download citation
DOI: https://doi.org/10.1007/978-3-030-82291-0_10
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-82290-3
Online ISBN: 978-3-030-82291-0
eBook Packages: Law and CriminologyLaw and Criminology (R0)