On 9 April 2024, the predictions about the EU Foreign Subsidies Regulation (“FSR”) became reality: the European Commission (“Commission”) opens its first ex-officio investigation under the FSR, targeting Chinese wind turbines (see Commission Executive Vice-President Margrethe Vestager’s speech at Princeton University of 9 April 2024). Since the entry into force of the FSR in July 2023, it was expected that the Commission would target strategic sectors related to the EU’s green energy for its first ex-officio investigations, and that these would focus on foreign subsidies from Asian and Middle-Eastern countries.
The Commission is now looking into subsidies granted by China that appear to be distortive of the EU internal market behind wind turbine operations in several EU countries, namely Spain, Greece, France, Romania, and Bulgaria.
In October last year, the Commission initiated its first ex officio anti-subsidy investigation under the trade instruments into the imports of battery electric vehicles from China. In the last few weeks, the Commission also opened in-depth investigations following FSR notifications of tenders submitted by inter alia Chinese companies in EU public procurements related to (i) electric trains in Bulgaria (this investigation closed when the targeted company withdrew its tender), and (ii) solar photovoltaic park in Romania.
These moves show that the Commission is committed to fully use its new powers under the FSR in parallel with its trade instruments to tackle foreign subsidies distorting the EU internal market, especially in those sectors that are seen as strategic for the EU industry.
Margrethe Vestager, in her speech at Princeton University, acknowledged that China is for the EU “simultaneously a partner, an economic competitor, and a systemic rival”, and that it lured its domestic companies with "massive subsidies” before “exporting excess capacity to the rest of the world at low prices”. As a result, for example, China has come to dominate the solar panel industry. Margrethe Vestager thus underscored the urgency of maintaining a level playing field in clean tech, and the EU’s transition to green energy based on fair competition. The investigation and the ones to follow aim to ensure just that.
The impact of the Commission’s investigation into Chinese wind turbines for a number of stakeholders includes:
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Targeted companies, their competitors and their business partners will receive (or have already received) a request for information from the Commission, which needs to build its case around the theories of harm of those likely distortive foreign subsidies. Unlike in public procurement or merger control in-depth investigations, the ex-officio procedure will likely be lengthy.
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EU companies active in green energies, and which face challenges from competitors that they suspect of being heavily subsidized by non-EU public entities, should closely monitor the wind turbine investigation. In fact, Commission officials have explained at various informal events that they rely on “informants” to receive any relevant evidence of those subsidies that could distort the EU internal market.
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In the broader context, this investigation could strain EU-China trade relations. The China Chamber of Commerce to the EU already issued a statement expressing their “serious dissatisfaction with the abuse of the new tool”. China could view the investigation as an affront to its economic policies. Retaliatory actions, such as imposing tariffs on EU goods, could follow. Also, the Chinese government may defend its subsidies as necessary for promoting green energy and meeting climate targets.
The Hogan Lovells team which has already been involved in an FSR investigation provides tailored “one-stop-shop” advice on the FSR as well as on merger control, FDI, TDI and public procurement rules applicable to companies affected by those regulations.
For more information, we refer to our alerts published when the FSR entered into force and when it started to apply.
